WORLD TRADE  
ORGANIZATION  WT/DS331/R 
8 June 2007 
 (07-2364) 
 Original:   Spanish 
  
 
   
 
  
 
  
MEXICO – ANTI-DUMPING DUTIES ON STEEL PIPES AND 
TUBES FROM GUATEMALA 
 
 
 
 
Final Report of the Panel 
 
 
 
 
 WT/DS331/R 
Page i 
 
 
   
TABLE OF CONTENTS 
 
I. INTRODUCTION ................................................................................................................... .1 
A. COMPLAINT OF GUATEMALA ......................................................................................................1  
B. ESTABLISHMENT AND COMPOSITION OF THE PANEL ...................................................................1  
C. ADDITIONAL PROCEDURES FOR THE PRO TECTION OF BUSINESS CONFIDENTIAL 
INFORMATION ..............................................................................................................................1  
II. FACTUAL ASPECTS ..............................................................................................................2  
III. PARTIES' REQUESTS FOR FIND INGS AND RECOMMENDATIONS.........................3  
A. GUATEMALA ............................................................................................................................... 3 
B. MEXICO ............................................................................................................................... ........5  
IV. ARGUMENTS OF THE PARTIES ........................................................................................7  
V. ARGUMENTS OF THE THIRD PARTIES ..........................................................................7  
VI. INTERIM REVIEW................................................................................................................. 8 
VII. FINDINGS....................................................................................................................... ..........9  
A. GENERAL ............................................................................................................................... ......9  
1. Standard of review............................................................................................................. .......9  
2. Burden of proof and " prima facie " case ...............................................................................10  
3. Treaty interpretation.......................................................................................................... ....11  
B. CLAIMS RELATING TO INITIATION OF THE INVESTIGATION .......................................................11  
1. Arguments of the parties....................................................................................................... .11 
(a) Guatemala ...................................................................................................................... ...........11  
(b) Mexico ......................................................................................................................... .............12  
2. Arguments of the third parties ..............................................................................................12  
3. Evaluation by the Panel........................................................................................................ ..12 
(a) Factual background............................................................................................................. ......12  
(b) Analysis ....................................................................................................................... .............14  
C. FACTS RELATING TO DEFINITION OF  PRODUCT UNDER INVESTIGATION /LIKE PRODUCT ...........29  
1. The application (GTM-1) .......................................................................................................3 0 
2. The "prevención" (GTM-3)...................................................................................................31  
3. The notice of initiation (GTM-4) ...........................................................................................32  
4. Submission of Tubac accompanying r esponse to exporters' questionnaire / 
questionnaire response (GTM-5)...........................................................................................33  
5. Hylsa's reply to Tubac's submission  and exporters' questionnaire response 
(GTM-27)....................................................................................................................... ..........34  
6. Information from the domestic industry pr ior to the Preliminary Determination...........34  
7. Preliminary Determin ation (GTM-10)..................................................................................35  
8. Technical information meeting with Tubac (GTM-11(A))..................................................36  
9. Technical information meeting with Hylsa (GTM-11(B))...................................................36  
10. Notice of verification to Tubac (GTM-13) ............................................................................37  WT/DS331/R 
Page ii  
 
 11.
 Verification report – Tubac (GTM-15).................................................................................38  
12. Verification report – Hylsa (GTM-24)..................................................................................38  
13. Other information from the domestic industry between the Preliminary and 
Final Determinations ........................................................................................................... ...39 
14. Public hearing (GTM-19).......................................................................................................3 9 
15. Arguments – 6 September 2002 .............................................................................................40  
(a) Hylsa (GTM-20) ................................................................................................................. ......40  
(b) Tubac (GTM-29)................................................................................................................. ......41  
16. Final Determination............................................................................................................ ....41  
17. Factual finding by the Panel ..................................................................................................4 2 
D. CLAIMS RELATING TO DETERMINATION OF DUMPING – RESORT BY ECONOMÍA TO 
FACTS AVAILABLE .....................................................................................................................43  
1. Claims pursuant to Article 6..................................................................................................4 3 
(a) Arguments of parties........................................................................................................... ......43  
(b) Arguments of the third parties ................................................................................................. .44 
(c) Evaluation by the Panel ........................................................................................................ ....44  
2. Claims pursuant to Article 2..................................................................................................7 2 
E. CLAIMS RELATING TO DETERMINATION OF INJURY AND CAUSAL LINK ....................................73  
1. "Objective examination" of "positive ev idence" in injury determinations.......................73  
2. Time gap between the end of the period of investigation and the initiation of 
investigation.................................................................................................................. ...........75  
(a) Arguments of the parties....................................................................................................... ....75  
(b) Arguments of the third parties ................................................................................................. .75 
(c) Evaluation by the Panel ........................................................................................................ ....76  
3. Use of six-month periods for the injury analysis..................................................................82  
(a) Arguments of the parties....................................................................................................... ....82  
(b) Arguments of the third parties ................................................................................................. .82 
(c) Evaluation by the Panel ........................................................................................................ ....83  
4. Volume and price effect s of dumped imports.......................................................................88  
(a) Arguments of the parties....................................................................................................... ....88  
(b) Evaluation by the Panel ........................................................................................................ ....89  
5. Injury to the "domestic industry".........................................................................................99  
(a) Arguments of the parties....................................................................................................... ....99  
(b) Arguments of the third parties ................................................................................................. .99 
(c) Factual background............................................................................................................. ....100  
(d) Evaluation by the Panel ........................................................................................................ ..105  
6. Article 3 claims relating to the scope of the investigated product/like product ..............112  
(a) Arguments of the parties....................................................................................................... ..112  
(b) Arguments of the third parties ................................................................................................1 12 
(c) Evaluation by the Panel ........................................................................................................ ..113  
7. Causation/non-attribution....................................................................................................11 6 WT/DS331/R 
Page iii 
 
 
  (a) Arguments of the parties....................................................................................................... ..116  
(b) Arguments of the third parties ................................................................................................1 16 
(c) Evaluation by the Panel ........................................................................................................ ..116  
F. PROCEDURAL CLAIMS .............................................................................................................126  
1. Confidentiality and non-confidential summaries...............................................................126  
(a) Arguments of the parties....................................................................................................... ..126  
(b) Arguments of the third parties ................................................................................................1 26 
(c) Evaluation by the Panel ........................................................................................................ ..126  
2. Contents of Preliminary and Final Determinations...........................................................136  
3. Essential facts ................................................................................................................ ........137  
G. CLAIMS UNDER ARTICLES 1 AND 18 OF THE ANTI-DUMPING AGREEMENT ............................137  
VIII.  CONCLUSIONS AND RECOMMENDATION ................................................................137  
IX. APPENDICES..................................................................................................................... ..142  WT/DS331/R 
Page iv  
 
 DISPUTE SETTLEMENT REPORTS AND ARBITRAL 
AWARDS CITED IN THE REPORT 
 
Short Title Full Case Title and Citation 
Argentina – Ceramic Tiles  Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports of 
Ceramic Floor Tiles from Italy , WT/DS189/R, adopted 5 November 2001, 
DSR 2001:XII, 6241 
Argentina – Footwear (EC)  Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515 
Argentina – Poultry Anti-
Dumping Duties Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from 
Brazil , WT/DS241/R, adopted 19 May 2003, DSR 2003:V, 1727 
Brazil – Aircraft  
(Article 21.5 – Canada)  Appellate Body Report, Brazil – Export Financing Programme for Aircraft 
 – Recourse by Canada to Article 21.5 of the DSU , WT/DS46/AB/RW, adopted 
4 August 2000, DSR 2000:VIII, 4067 
EC – Bed Linen  Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton-Type Bed Linen from India , WT/DS141/R, adopted 12 March 2001, 
modified by Appellate Body Report, WT/DS141/AB/R, DSR 2001:VI, 2077 
EC – Bed Linen  
(Article 21.5 – India)  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from I ndia – Recourse to Article 21.5 of the 
DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 965  
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 18 August 2003, DSR 2003:VI, 2613 
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-Dumping Duties on Malleable Cast 
Iron Tube or Pipe Fittings from Brazil , WT/DS219/R, adopted 18 August 2003, 
modified by Appellate Body Report, WT/DS219/AB/R, DSR 2003:VII, 2701 
Egypt – Steel Rebar  Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from 
Turkey , WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, 2667 
Guatemala – Cement II  Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland 
Cement from Mexico , WT/DS156/R, adopted 17 November 2000, DSR 2000:XI, 
5295 
Japan – Agricultural Products II  Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277 
Japan – Apples  Appellate Body Report, Japan - Measures Affecting the Importation of Apples , 
WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, 4391 
Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from 
Indonesia , WT/DS312/R, adopted 28 November 2005 
Mexico – Anti-Dumping 
Measures on Rice Appellate Body Report, Mexico – Definitive Anti-Dump ing Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R, adopted 
20 December 2005 
Mexico – Anti-Dumping 
Measures on Rice Panel Report, Mexico – Definitive Anti-Dumping Me asures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R, adopted 20 December 2005, 
modified by Appellate Body Report, WT/DS295/AB/R WT/DS331/R 
Page v 
 
 
  Short Title Full Case Title and Citation 
Mexico – Corn Syrup  Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup 
(HFCS) from the United States , WT/DS132/R and Corr.1, adopted 24 February 
2000, DSR 2000:III, 1345 
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of Iron or Non-Alloy Steel and H-Beams from Poland , 
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, 2701 
US – 1916 Act (Japan)  Panel Report, United States – Anti-Dumping Act of 1916, Complaint by Japan , 
WT/DS162/R and Add.1, adopted 26 September 2000, upheld by Appellate Body 
Report, WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4831 
US – Countervailing Duty Investigation on DRAMS Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R, adopted 20 July 2005 
US – DRAMS  Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access 
Memory Semiconductors (DRAMS) of One Megabit or Above from Korea , 
WT/DS99/R, adopted 19 March 1999, DSR 1999:II, 521 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 20 April 
2005 
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3 
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain  
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 23 August 
2001, DSR 2001:X, 4697 
US – Hot-Rolled Steel  Panel Report, United States – Anti-Dumping Measures on Certain Hot-Rolled 
Steel Products from Japan , WT/DS184/R, adopted 23 August 2001 modified by 
Appellate Body Report, WT/DS184/AB/R, DSR 2001:X, 4769 
US – Lamb  Panel Report, United States – Safeguard Measures  on Imports of Fresh, Chilled 
or Frozen Lamb Meat from New Zealand and Australia , WT/DS177/R, 
WT/DS178/R, adopted 16 May 2001, modified by Appellate Body Report, 
WT/DS177/AB/R, WT/DS178/AB/R, DSR 2001:IX, 4107 
US – Offset Act  (Byrd Amendment
 ) Appellate Body Report, United States – Continued Dumping and Subsidy Offset 
Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003, 
DSR 2003:I, 375 
US – Oil Country Tubular 
Goods Sunset Reviews  (Article 21.5 – Argentina) Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil 
Country Tubular Goods from Argentina – Re course to Article 21.5 of the DSU by 
Argentina , WT/DS268/RW, circulated to WTO Members 30 November 2006 
US – Softwood Lumber V  Panel Report, United States – Final Dumping Determination on Softwood Lumber 
from Canada , WT/DS264/R, adopted 31 August 2004, modified by Appellate 
Body Report, WT/DS264/AB/R, DSR 2004:V, 1937 
US – Softwood Lumber V  
(Article 21.5 – Canada) Panel Report, United States – Final Dumping Determination on Softwood Lumber 
from Canada – Recourse to Article 21.5 of the DSU by Canada , WT/DS264/RW, 
adopted 1 September 2006, reversed  by Appellate Body Report, 
WT/DS264/AB/RW 
US – Steel Plate  Panel Report, United States – Anti-Dumping and Countervailing Measures on 
Steel Plate from India , WT/DS206/R and Corr.1, adopted 29 July 2002, 
DSR 2002:VI, 2073 WT/DS331/R 
Page vi  
 
 Short Title Full Case Title and Citation 
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R and Corr.1, adopted 
23 May 1997, DSR 1997:I, 323 
 
 WT/DS331/R 
Page vii 
 
 
  ANNEX A 
 
First Written Submissions by the Parties  
 
Contents Page 
Annex A-1 Executive Summary of the First Written Submission of Guatemala A-2 
Annex A-2 Executive Summary of the First Written Submission of Mexico A-14 
 
 
ANNEX B 
 
Third Party Submissions 
 
Contents Page 
Annex B-1 Executive Summary of the Third Party Submission of the European 
Communities B-2 
Annex B-2 Executive Summary of the Third Party Submission of Japan B-5 
Annex B-3 Executive Summary of the Third Party Submission of the United 
States B-10 
Annex B-4 Third Party Oral Statement of the European Communities B-13 
Annex B-5 Third Party Oral Statement of Japan B-17 
Annex B-6 Third Party Oral Statement of the United States B-19 
 
 
ANNEX C 
 
Second Submissions by the Parties 
 
Contents Page 
Annex C-1 Executive Summary of the Second Written Submission of 
Guatemala C-2 
Annex C-2 Executive Summary of the Second Written Submission of Mexico C-11 
 
 
ANNEX D 
 
Oral Statements, First and Second Panel meetings 
 
Contents Page 
Annex D-1 Executive Summary of the Oral Statement of Guatemala – First 
Meeting D-2 
Annex D-2 Executive Summary of the Oral Statement of Mexico – First 
Meeting D-7 
Annex D-6 Executive Summary of the Oral  Statement of Guatemala – Second 
Meeting  D-14 
Annex D-7 Executive Summary of the Oral Statement of Mexico – Second 
Meeting D-19 
Annex D-8 Closing Statement of Guatemala – Second Meeting D-33 
 
 
 WT/DS331/R 
Page 1 
 
 
  I. INTRODUCTION 
A. COMPLAINT OF GUATEMALA  
1.1 On 17 June 2005, Guatemala requ ested consultations with Mexico  pursuant to Article 4 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes  (the " DSU "), 
Article XXIII:1 of the General Agreement on Tariffs and Trade 1994  (the " GATT 1994 ") and 
Article 17 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and 
Trade 1994  (the " Anti-Dumping Agreement ") regarding the definitive anti-dumping measures 
imposed by Mexico on imports of certain steel pi pes and tubes from Guatemala and the investigation 
leading thereto.1  Guatemala and Mexico held cons ultations on 15 July, 26 August, and 
28 September 2005. These consultations  failed to resolve the dispute. 
 
1.2 On 6 February 2006, Guatemala requested the establishment of a panel pursuant to Article 6.2 
of the DSU and Article 17.4 of the Anti-Dumping Agreement.2   
 B. E
STABLISHMENT AND COMPOSITION OF THE PANEL  
1.3 At its meeting on 17 March 2006, the Di spute Settlement Body established a Panel pursuant 
to the request by Guatemala in document WT/DS 331/2, in accordance with Article 6 of the Dispute 
Settlement Understanding (DSU). At that meeting, the parties to the dispute also agreed that the Panel 
should have standard terms of re ference.  The terms of reference are, therefore, the following: 
 
"To examine, in the light of the relevant provisions of the covered agreements cited 
by Guatemala in document WT/DS331/2, the matter referred to the DSB by 
Guatemala in that document, and to make such findings as will assist the DSB in 
making the recommendations or in giving the rulings provided for in those agreements."  
1.4 On 4 May 2006, the parties agreed to the following composition of the Panel:
3  
 
Chairman: Mr Julio Lacarte-Muró 
Members: Mr Cristian Espinosa Cañizares 
  Mr Álvaro Espinoza 
  China, the European Communities, Honduras, Japan, and the United States reserved their 
third-party rights. 
 1.5 The Panel met with the parties on 12-14 Se ptember 2006 and 7-9 November 2006.  It met 
with the third parties on 12 September 2006.  
C. A
DDITIONAL PROCEDURES FOR THE PROTECTION OF BUSINESS CONFIDENTIAL INFORMATION  
1.6 To facilitate the submission of certain information by Mexico, on 27 September 2006 the 
Panel adopted additional procedures for the prot ection of business confidential information. These 
procedures ("the BCI procedures"), are set forth in Attachment 2.   
                                                      
1 WT/DS331/1. 
 
2 WT/DS331/2. 
 
3 WT/DS331/3. WT/DS331/R 
Page 2  
 
  
II. FACTUAL ASPECTS 
2.1 This dispute concerns the imposition by Me xico of anti-dumping measures on imports of  
certain steel pipes and tubes from Guatemala.  
2.2 On 22 May 2001, the Mexican company Hylsa, S.A. de C.V. ("Hylsa") filed an application 
for an anti-dumping investigation concerning "standard" steel pipes and tubes.
4 Following Hylsa's 
response to a request for further informati on from the Mexican investigating authority5, Economía 
published on 24 August 2001 a Notice of Initiation in its Official Journal6, initiating an investigation 
on standard steel pipes and tubes, included within the tariff lines 7306.30.01 and 7306.30.99, 
originating in Guatemala. Tubac, S.A. ("T ubac") was the only Guatemalan exporting producer 
investigated.  2.3 The investigation covered the period from 1 July 2000 to 31 December 2000 
7 ("Investigation 
Period"). The examination of "trends" in the contex t of the injury analysis covered the period from 
1 July to 31 December of 1998, 1999 and 2000 8 ("Injury Investigation Period"). 
 2.4 Numerous communications and exchanges, including questionnaires and meetings, occurred 
between Economía and Tubac and/or  Tubac's legal counsel in the course of the investigation. A 
verification visit occurred at the premises of  Tubac from 17 to 21 June 2002 and from 24 to 
25 June 2002.
9 
 
2.5 On 13 March 2002, Mexico imposed provisional anti-dumping duties of 3.41 per cent and 12.82 per cent covering all products classified  in the tariff lines 7306.30.01 and 7306.30.99, 
respectively, on imports from Tubac.
10 Mexico also imposed duties of 25.83 per cent and 26.59 per 
cent covering all products classified in the ta riff lines 7306.30.01 and 7306.30.99, respectively, on 
imports from all other Guatemalan exporters.11 
 2.6 On 13 January 2003, Mexico imposed definitive anti-dumping duties of 25.87 per cent on imports of certain steel pipes and tubes from Guatemala as reflected in the Definitive Regulation.
12  
 
                                                      
4 Exhibit GTM-1. 
  
5 Exhibit GTM-2. 
 
6 Official Journal, 24 August 2001.  Exhibit GTM-4. 
 
7 Exhibit GTM-4, para. 2. 
 
8 Exhibit GTM-4, para. 100. 
 
9 Exhibit GTM-13. 
 
10 Provisional Determination, Exhibit GTM-10, paras. 197 A and 197 B. 
 
11 Provisional Determination, Exhibit GTM-10, paras. 197 C and 197 D. 
 
12 Definitive Determination, Exhibit GTM-23, para. 275. WT/DS331/R 
Page 3 
 
 
  III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
A. GUATEMALA  
3.1 Guatemala requests that the Panel: 
 
(a) find that by imposing anti-dumping duties on imports of steel pipes and tubes from 
Guatemala, Mexico – through Economía – ac ted inconsistently with its commitments 
under Articles 1 and 18.1 of the Anti-Dumping Agreement , in contravening the 
following:13 
(i) Article 5.2(iii), 5.2(iv), 5.3 and 5.8 of the Anti-Dumping Agreement , by 
initiating the investigation without properly examining the accuracy and 
adequacy of the evidence provided in the application for initiation, the 
evidence of itself not being adequate or accurate for a determination of 
dumping, injury or causal link between the two; 
(ii) Articles 2.1, 2.4, 2.6, 3.1, 3.2, 3.4, 3.5, 4.1, 5.4, 6.4, 6.9 and 18.114 of the 
Anti-Dumping Agreement , by modifying the definition of the product under 
consideration and the like product in or der to include pipes and tubes which 
were excluded from the definition in th e preliminary determination and for 
which there was no investigation, by  failing to make an unbiased and 
objective examination of the positive evid ence in the record and any finding 
of dumping, injury or causal link be tween the two regarding products for 
which no investigation was either  initiated or conducted, and, 
notwithstanding the foregoing, by im posing definitive anti-dumping duties on 
those products; 
(iii) Article 6.8 and 6.1315 and Annex II of the Anti-Dumping Agreement  and 
hence Article 2.1, 2.2 and 2.4 of the Anti-Dumping Agreement , by relying on 
facts available without properly following the procedures laid out in 
Article 6.8 and Annex II of the Anti-Dumping Agreement ; 
(iv) Article 6.2, 6.4, 6.7 and 6.816 of the Anti-Dumping Agreement , by failing to 
disclose to the exporter that it had encountered problems at the on-the-spot investigation that warranted the rejecti on of all of the exporter's data and the 
use of facts available under Article 6.8;  Article 6.2, 6.4, 6.7, 6.8 and 6.9 of 
the Anti-Dumping Agreement , by failing to provide any subsequent adequate 
explanation of the problems it had encountered at the on-the-spot 
                                                     
 
13 First written submission of Guatemala, paras. 93, 94, 102, 154, 236, 266, 279, 280 and 361. 
 
14 In its request for the establishment of a panel, Guatemala also referred in this context to Article 3.6 
(Appendix 1, point (b) of the claims relating to the product under consideration/like product). 
 
15 In its request for the establishment of a panel, Guatemala also referred in this context to Article 6.6 
(Appendix 1, point (d) of the claims relating to the determination of dumping). 
 
16 In its request for the establishment of a panel, Guatemala also referred in this context to Article 6.6 
(Appendix 1, point (e) of the claims relating to the determination of dumping). 
 WT/DS331/R 
Page 4  
 
 investigation or of those that justifie d resort to facts available, and hence 
Articles 2.1, 2.2 and 2.4 of the Anti-Dumping Agreement
17; 
(v) Article 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement , by basing its 
determination of injury and causation on a period of investigation that ended 
significantly before the initiation of the investigation, without taking into 
account relevant data relating to a period closer to that of the investigation, 
which resulted in a determination of injury and causal link that was not based on an objective examination or positive evidence; 
(vi) Article 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement , by improperly 
limiting its injury analysis to data re lating to six-month periods each year 
within the period of investigation, whic h resulted in a determination of injury 
and causal link that was not based on an objective examination or positive evidence; 
(vii) Articles 3.1, 3.2, 3.4, 3.5 and 4.1
18 of the Anti-Dumping Agreement , by 
selectively and inconsistently using in formation relating to different time 
periods and different sets of data pertaining to different companies or 
combinations of companies in its analysis of the volume and price effects of the imports under investigation, of the impact of those imports on investigation on the domestic industry, and of causation, which resulted in a 
determination of injury and causal link that was not based on an objective examination or positive evidence; 
(viii) Article 3.1 and 3.2 of the Anti-Dumping Agreement , by analysing both the 
volume of the allegedly dumped imports and the effect of those imports on prices in the domestic market for like products, and the consequent impact of those imports on the domestic producers of  such products, without relying on 
an objective examination or positive evidence
19; 
(ix) Article 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement , by failing to 
properly analyse other known factors that were at the same time causing injury to the domestic industry, and by failing to ensure that injury caused by 
those known factors was not attributed to the imports under investigation; 
(x) Article 6.9 of the Anti-Dumping Agreement , by failing to inform the exporter 
of the essential facts under consideration that formed the basis for its decision 
to apply definitive duties;  
                                                     
 
17 Guatemala’s request for the establishment of a pa nel also contains a claim relating to adjustments 
made by Economía to the export pri ce for certain categories of expenses  without making the symmetrical 
adjustments to the normal value, which in the view of Guatemala was inconsistent with Article 2.1, 2.2 and 2.4 
of the Anti-Dumping Agreement  (Appendix 1, point (f) of the claims relating to the determination of dumping). 
 
18 In its request for the establishment of a panel, Guatemala also referred in this context to Article 3.6 
(Appendix 1, point (i) of the claims relating to the determination of injury and a causal link). 
 
19 In its esponse to question 59 from the Panel, Guatemala withdrew the allegation contained in its 
request for the establishment of a panel (Appendix 1, po int (k) of the claims relating to the determination of 
injury and a causal link) that Economía had failed to evaluate properly all relevant economic factors and indices 
having a bearing on the state of the domestic industry listed in Article 3.4, which in the view of Guatemala was inconsistent with Article 3.1 and 3.4 of the Anti-Dumping Agreement . 
 WT/DS331/R 
Page 5 
 
 
  (xi) Article 12.2 of the Anti-Dumping Agreement , by failing to disclose in its 
preliminary and final determinations20 in sufficient detail the findings and 
conclusions reached on all issues of fact and law that were considered material by the Mexican authorities; 
(xii) Article 6.5 of the Anti-Dumping Agreement , by failing to require the 
applicant to provide non-confidential summaries and to disclose properly 
information that was not shown upon good cause to be confidential or to disclose non-confidential summaries of confidential information. 
(b) pursuant to Article 19.1 of the DSU, recomme nd that Mexico brings its measure into 
conformity with the Anti-Dumping Agreement
21; 
(c) pursuant to Article 19.1 of the DSU, suggest  that Mexico repeal its anti-dumping duty 
order.22 
B. MEXICO  
3.2 Mexico requests that the Panel reject all of Guatemala's allegations and determine that 
Mexico acted in accordance with the Anti-Dumping Agreement .  In particular, Mexico requests that 
the Panel find: 
  (a) in respect of initiation, that Mexico did not contravene Articles 5.2, 5.3 or 5.8  of the 
Anti-Dumping Agreement  because the request for initia tion contained the information 
that was reasonably available to the app licant; and because Economía analyzed this 
information, requested clarifications, and on this basis determined that there was 
sufficient evidence of the existence of a lleged dumping, injury and causal link to 
justify initiation
23; 
  (b) in respect of alleged changes to the definition of the investigated product, that 
Mexico did not contravene Articles 1, 2.1, 2.4, 2.6, 3.1, 3.2, 3.4, 3.5, 4.1, 5.4, 6.4, 6.9 
or 18.1, because the Anti-Dumping Agreement  does not contain rules concerning the 
definition of the investigated product; becau se Economía correctly considered the 
physical characteristics and technical and commercial interchangeability of the 
products at issue; and because Economía re ached its injury determination on the 
basis of an objective examination of positive evidence
24;  
 
 (c) in respect of Economía's rejection of the information provided by the exporter and 
resort to facts available for the determ ination of dumping, that Mexico did not 
contravene Article 6.8 or Annex II of the Anti-Dumping Agreement  because the 
exporter deliberately provided incomplete  and inaccurate information that did not 
come from its accounting records, such that it did not provide all of the necessary 
                                                      
20 In its response to question 128 from the Panel, Gu atemala withdrew its allegations relating to the 
final determination. 
 
21 Guatemala first written submission, para. 363. 
 
22 Guatemala first written submission, para. 353. 
 
23 First written submission of Mexico, paras. 14, 51, 75 and 76. 
 
24 First written submission of Mexico, paras. 91, 97, 98, 99, 104 and 108.   WT/DS331/R 
Page 6  
 
 information within a reasonable period and thus significantly impeded the 
investigation
25; 
  (d) in respect of Economía's provision of o pportunities for the exporter to see all relevant 
information and to prepare presentations ther eon, Economía's provi sion of a report on 
the results of the verification, and Economía 's informing the exporter of the essential 
fact that its information was to be reject ed and facts available used instead, that 
Mexico did not contravene Articles 6.2, 6.4, 6.7, 6.8, or 6.9 of the Anti-Dumping 
Agreement  because the exporter knew and was r esponsible for the existence of the 
problems encountered at verification; because the verification report prepared by 
Economía accurately described the results of the verification visit; because Economía 
informed the exporter of the essential facts th at were the basis of its decision to apply 
definitive anti-dumping duties through: (a) the publication of its Preliminary and 
Final Determinations, (b) the public hearing
, and (c) the content of the file to which 
Guatemala had access throughout the inv estigation process; and because Economía's 
published resolutions covered completely a nd adequately Economía's considerations 
and conclusions on the issues of dumping, injury and causal link, including all questions of fact and law considered pe rtinent by Economía, among which were its 
determination of dumping on the basis of facts available
26; 
  (e) in respect of Economía's use, for the injury analysis, of a period that concluded eight 
months before the initiation of the investigation, that Guatemala did not present a  
prima facie case that Mexico contravened Articles 3.1, 3.2, 3.4 or 3.5 of the Anti-
Dumping Agreement ; and that in any case, Economía made an objective examination 
based on positive evidence in using inform ation for that period for its injury 
analysis
27; 
 
 (f) in respect of Economía's use, for the in jury analysis, of data for three consecutive 
half-yearly periods, that Guatemala did not present a prima facie case that Mexico 
contravened Articles 3.1, 3.2, 3.4 or 3.5 of the Anti-Dumping Agreement ; and that in 
any case, Economía made an objective exam ination based on positive evidence in 
using information for those periods for its injury analysis28; 
 
 (g) in respect of Economía's use, in its analys is of different injury factors, of data for 
different companies or different combina tions of companies within the domestic 
industry, that Mexico did not contravene Articles 3.1, 3.2, 3.4, 3.5 or 4.1 of the Anti-
Dumping Agreement because Economía based its anal ysis on information that 
pertained either to the domestic industry as a whole or to a major proportion thereof 
in accordance with the Anti-Dumping Agreement29; 
  (h) in respect of Economía's analysis of the volume of imports of the investigated 
product from countries other than Guatemala, and of the price effects of the subject 
imports, that Mexico did not contravene Articles 3.1 or 3.2 of the Anti-Dumping 
                                                     
 
25 First written submission of Mexico, paras. 142, 148, 150 and 151. 
 
26 First written submission of Mexico, paras. 142, 152, 290, 293, 295, and 296. 
 
27 First written submission of Mexico, paras. 163, 174 and 175. 
 
28 First written submission of Mexico, paras. 188, 203 and 204. 
 
29 First written submission of Mexico, paras. 211 and 213. WT/DS331/R 
Page 7 
 
 
  Agreement  because Economía's methodology (a sample of transactions to which was 
applied a range of minimum and maxi mum prices) was permissible as the Agreement 
contains no specific rules in this re gard; and because Guatemala's allegation 
concerning Economía's analysis of the price effects of the subject imports was based on a factual error
30; 
 
 (i) in respect of Economía's causation/non-a ttribution analysis, that Guatemala did not 
present a  prima facie case that Mexico contravened Articles 3.1, 3.2, 3.4 or 3.5 of the 
Anti-Dumping Agreement  because in respect of the "other known factors" cited by 
Guatemala, (a) there was no increase in operating costs contrary to Guatemala's 
allegation; and (b) Mexico explained the reasons why it considered that the decline in 
exports was not a determinative factor causing injury31; 
  (j) in respect of the treatment in the Pr eliminary and Final Determinations of the 
changes in the definition of the investigated  product, that in relation to the Final 
Determination Mexico did not c ontravene Article 12.2 of the Anti-Dumping 
Agreement because Guatemala's citation of that Determination is inaccurate, as the 
change in product diameters is only releva nt for the Preliminary Determination; and 
that Mexico did not contravene that provision in relation to the Preliminary Determination, because that Determination in dicates that the exporter did not object 
to, and thus tacitly accepted, the change in  the diameter; and that in general the 
Determinations contain all of the information required by Article 12.2
32;  and 
  (k) in respect of access to confidential info rmation, that Mexico did not contravene 
Article 6.5 of the Anti-Dumping Agreement because under Mexican law all interested 
parties are allowed access to the confidential file subject to compliance with certain 
conditions; because Economía analyzed the suffi ciency of the justifications presented 
by interested parties requesting confid ential treatment for submitted information 
before granting such treatment; and because Economía obtained non-confidential 
summaries except in respect of certain types of information (tables of numbers) that 
in the view of Mexico cannot be summarized.
33 
 IV. ARGUMENTS OF THE PARTIES 
4.1 The arguments of the parties as set forth in  their executive summaries submitted to the Panel, 
are attached to this Report as Annexes (see List of Annexes, page vi).   
V. ARGUMENTS OF THE THIRD PARTIES 
5.1 The arguments of the third parties as set fo rth in their executive summaries submitted to the 
Panel, i.e. the European Communities, Japan, and th e United States, are attached to this Report as 
Annexes (see List of Annexes, page vi).   
                                                     
 
30 First written submission of Mexico, paras. 238, 241 and 244. 
 
31 First written submission of Mexico, paras. 259, 261, 274, 278 and 279. 
 
32 First written submission of Mexico, paras. 300, 301, 302 and 303. 
 
33 First written submission of Mexico, paras. 305, 306, 312 and 313. WT/DS331/R 
Page 8  
 
 VI. INTERIM REVIEW 
6.1 We have made a number of technical rectifica tions to paragraphs 2.2,  7.74 and 7.164 and to 
footnote 210.   A. R
EQUESTS FROM MEXICO  
6.2 With regard to paragraphs 7. 20 and 7.21, Mexico questions our characterization of some of its 
assertions regarding the obligations impo sed by Article 5.2 and 5.3 of the Anti-Dumping Agreement .  
It submits, in particular, that it never argued th at Article 5.3 does not impose obligations on an 
investigating authority.  Guatemala does not comment .  We have introduced a clarification regarding 
our reading of Mexico's argument. 
 
6.3 With regard to paragraph 7.38, Mexico argu es that none of the parties contended that there 
were 124 different products (figure cited by the Panel in that paragraph), and suggests that the Panel 
may have been referring to the alleged number of product codes (132) cited in Guatemala's 
arguments.  Guatemala does not comment.  We have amended a sentence in the paragraph for the sake 
of greater clarity and to point out in particular th at the 124 products is a figure we ourselves found on 
the basis of the evidence submitted.  6.4 With regard to paragraphs 7.58 an 7.59, Mexi co questions the standard we applied in finding 
that initiation was not justified by insufficient ev idence on the volume of imports of the investigated 
product.  Mexico asks us to clarify whether the re ason was that the authority took no additional steps 
to ascertain the relevance of the information obtained at tariff line level, regardless of whether or not 
it could get more accurate information, or whet her the incompatibility stemmed from the actual lack 
of additional data any more accurate than those pr ovided in the application.  Mexico challenges our 
finding that Economía "had access" to import "ped imentos" arguing that, on the contrary, Economía 
had to obtain them from other sources.  Mexico al so requests clarification of the assertion that our 
focus was on "the type of evidence of injury".  Guatemala does not comment.  As to the standard we 
applied, we have introduced a number of changes in  paragraph 7.58.  We have replaced "had access" 
in paragraph 7.59 with "obtained" so as to clarify the factual situation.  As to our focus on the " type of 
evidence", we have introduced a new footnote, numb er 115, with a cross reference to paragraph 7.56. 
 6.5 As regards our determinations regarding the adequacy of information on imports from 
countries other than the one investigated, in gene ral, Mexico argues that Economía sought a much 
larger set of "pedimentos" than it ultimately obtaine d.  Mexico requests clarification as to the manner 
in which Economía could have gone about obtaining more "pedimentos".  Guatemala does not 
comment.  First, this request of Mexico's is not very clear to us since Mexico gives no paragraph references.  We have nevertheless introduced a clar ification in paragraph 7. 283 regarding Mexico's 
argument on Economía's attempts to obtain more "pedim entos", which it did obtain in the end.  Since 
we consider our findings and conclusions on this matter sufficiently clear, we have made no other 
changes to this part of the report.  6.6 With regard to 7.64, Mexico denies any cont radiction in its assertions as to whether two types 
of tubing were investigated, or only one.  Gu atemala does not comment.  We have introduced a 
clarification in the paragraph and point out that , in any event, the point of the paragraph (as 
paragraph 7.65 indicates) is not to assume that Me xico concedes that Economía changed the definition 
of the product in the course of the investigation.  6.7 In paragraphs 7.76 and 7.98, Mexico suggest s that we correct the references to standards 
"ASTM A-513" and "ASTM A-500" respectively.  Guat emala takes the view that these references are 
correct.  Since they are exact quotations from documents  in the file and pertain to products other than 
standard A-53 tubing, we have placed them in inverted commas. WT/DS331/R 
Page 9 
 
 
   
6.8 Mexico seeks clarification of our assertion in paragraph 7.379 that "t he Agreement does not 
address interested parties ..."  Guatemala does not  comment.  We have clarified the paragraph. 
 B. R
EQUESTS FROM GUATEMALA  
6.9 Guatemala questions our assertion in paragraph 7.239 regarding the practical constraints the 
applicant met in collecting and analysing data, in the context of the period between the investigation 
period and the initiation of the investigation, and s eeks clarification as to how time constraints in 
analysing the information in an application would aff ect determination of the period of investigation.  
Guatemala also asks us to clarify how we consider ed the five factors listed in the report of the 
Appellate Body in Mexico – Anti-Dumping Measures on Rice  (quoted by us in paragraph 7.238).  
Mexico does not comment.  Our assertion in para graph 7.239 cited by Guatemala concerns the 
practical constraints faced by an applicant, not the constraints faced by an investigating authority in 
analysing an application.  We therefore see no need to  change this paragraph.  As to the factors listed 
by the Appellate Body in the Rice case, we believe our findings and c onclusions to be clear in that the 
factual situation here is different from that in the Rice case.  Furthermore, as the Appellate Body itself 
said in its report, the analysis and factors in Rice were specific to the case.  Consequently, we do not 
consider them to be a standard "ch ecklist" to be applied mechanically. 
 6.10 Guatemala asks us to explain our findi ng in paragraph 7.340 that Guatemala makes no 
allegation in respect of any "dissimilarity" between  the scope of the product under investigation and 
the like product.  Mexico does not comment.  In order to clarify this finding, we have introduced in 
paragraph 7.339, by means of footnote 396, a referen ce to the cited response by Guatemala, and, in 
paragraph 7.340, a cross reference to pa ragraph 7.105 by means of footnote 397. 
 6.11 Guatemala asks us to clarify our factual fi ndings regarding the point in the investigation at 
which Economía requested and received informat ion from the Mexican producers regarding the 
products added to the scope of the investigated pr oduct.  Mexico does not comment.  We see no need 
to make any change since this matter is already dealt with in footnotes 402 and 403.  6.12 Guatemala argues that, in the light of our findings in paragraph 7.379 and 7.388 that there were no sufficiently detailed summaries to allow a reasonable understanding of the content of the 
documents concerned, we ought to ha ve concluded that there was an inconsistency with Article 6.5.1 
of the Anti-Dumping Agreement .  Guatemala seeks clarification of our reasoning on this point.  
Mexico does not comment.  We have introdu ced clarification in paragraph 7.394. 
 6.13 Guatemala asks us to omit paragraphs 7.396 to 7.398 as th ey are not necessary to settlement 
of the dispute and do not form part of Guatemala's cl aim, and at all events to avoid any kind of value 
judgement as to the parties' ability to meet internal  requirements of the system of a Member.  Mexico 
disagrees, arguing that these paragraphs respond to matte rs that Guatemala raised before us.  We have 
made no change to these paragraphs.  
VII. FINDINGS 
A. G
ENERAL  
1. Standard of review 
7.1 The Panel recalls the standard of review th at it must apply to the matter before it. WT/DS331/R 
Page 10  
 
 7.2  Article 11 of the Dispute Settlement Understanding
34 sets forth the appropriate standard of 
review for panels for all covered agreements except the Anti-Dumping Agreement .  Article 11 imposes 
upon panels a comprehensive obligation to make an "objective assessment of the matter", an 
obligation which embraces all aspects of a panel's exam ination of the "matter", both factual and legal. 
7.3 Article 17.6 of the Anti-Dumping Agreement  sets forth the special standard of review 
applicable to anti-dumping disputes.  It provides:   
"(i) in its assessment of the facts of the matter, the panel shall determine whether 
the authorities’ establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective.  If the establishment of the facts was proper 
and the evaluation was unbiased and objectiv e, even though the panel might have 
reached a different conclusion, the evaluation shall not be overturned;"  
"(ii) the panel shall interpret the rele vant provisions of the Agreement in 
accordance with customary rules of interpreta tion of public international law.  Where 
the panel finds that a relevant provision of  the Agreement admits of more than one 
permissible interpretation, the panel sha ll find the authorities’ measure to be in 
conformity with the Agreement if it rests upon one of those permissible 
interpretations." 
7.4 Thus, together, Article 11 of the DSU  and Article 17.6 of the Anti-Dumping Agreement  set 
out the standard of review the Panel must apply with  respect to both the factual and legal aspects of its 
examination of the claims and arguments raised by the parties.
35 
7.5 In light of this standard of review, in examining the claims under the Anti-Dumping 
Agreement  in the matter referred to it, the Panel must evaluate whether the Mexican measure at issue 
is consistent with relevant provisions of the Anti-Dumping Agreement .  The Panel must find it 
consistent if it finds that the Mexican investigating authority36 has properly established the facts and 
evaluated them in an unbiased and objective manner, and that its determinations rest upon a 
"permissible" interpretation of the relevant provi sions.  The Panel's task is not to perform a de novo  
review of the information and evidence on the record  of the anti-dumping investigation at issue, nor to 
substitute its judgment for that of Economía, even  though it might have arrived at a different 
determination were it examining the record itself. 
2. Burden of proof and " prima facie " case 
7.6 The general principles applicable to burden of proof in WTO dispute settlement require that a 
party claiming a violation of a provision of the WTO Agreement by another Member must assert and 
prove its claim.37  In these Panel proceedings, Guatemala, which has challenged the consistency of 
Mexico's measure, thus bears the burden of demonstra ting that the measure is not consistent with the 
                                                      
34 Article 11 of the DSU , entitled "Function of Panels", states, in part:  "The function of panels is to 
assist the DSB in discharging its responsibilities unde r this Understanding and the covered agreements.  
Accordingly, a panel should make an  objective assessment of the matter before it, including an objective 
assessment of the facts of the case and the applicability of  and conformity with the relevant covered agreements, 
and make such other findings as will assist the DSB in making the recommendations or in giving the rulings 
provided for in the covered agreements …"  
35 Appellate Body Report, US – Hot-Rolled Steel , paras. 54-62. 
 
36 Unidad de Prácticas Comerciales Internacionales , hereinafter referred to as "Economía". 
 
37 Appellate Body Report, US – Wool  Shirts and Blouses , pp. 14-15.  
 WT/DS331/R 
Page 11 
 
 
  relevant provisions of the Agreement.  It is al so generally for each party asserting a fact to provide 
proof thereof.38  In this respect, therefore, it is also for Mexico to provide evid ence for the facts which 
it asserts.  
7.7 The parties' claims and arguments also touch upon a particular aspect of the burden of proof 
in dispute settlement proceedings:  the concept of a " prima facie  case".  If a party bearing the initial 
burden of proof to assert the affirmative of a par ticular claim or defence adduces evidence sufficient 
to raise a presumption that what it asserts is correct (i.e. a prima facie  case), the burden then shifts to 
the other party, who will fail unless it adduces su fficient evidence to rebut that presumption.39   
7.8 Thus, a  prima facie   case is one which, in the absence of  effective refutation by the defending 
party, requires a panel, as a matter of law, to rule in favour of the complaining party presenting the 
 prima facie   case.40  The evidence and arguments underlying a  prima facie   case must be sufficient to 
identify the challenged measure and its basic im port, identify the relevant WTO provision and 
obligation contained therein, and explain the basis for the claimed inconsistency of the measure with 
that provision.41  The nature and scope of evidence required to establish a  prima facie   case will 
necessarily vary from measure to measure,  provision to provision, and case to case.42  A panel errs 
when it rules on a claim for which the complaining party has failed to make a  prima facie  case.43   
3. Treaty interpretation 
7.9 Where we are called upon to interpret provisions of the Anti-Dumping Agreement , we recall 
that Article 3.2 of the DSU  indicates that Members recognise that  the WTO dispute settlement system 
serves to clarify the provisions of the covered ag reements "in accordance with customary rules of 
interpretation of public interna tional law".  Article 31 of the Vienna Convention on the Law of 
Treaties " ("Vienna Convention "), recognized as such a rule44, provides that "[a] treaty shall be 
interpreted in good faith in accordance with the or dinary meaning to be given to the terms of the 
treaty in their context and in the light of its object and purpose."45 
B. CLAIMS RELATING TO INITIATION OF THE INVESTIGATION  
1. Arguments of the parties 
(a) Guatemala   
7.10 Guatemala  argues that Mexico violated Article 5.2 (paragraphs (iii) and (iv)) of the Anti-
Dumping Agreement  as the application failed to contain sufficient evidence of dumping and injury to 
                                                      
38 Ibid. 
 
39 Ibid. 
 
40 Appellate Body Report, EC – Hormones , para. 104. 
 
 41 Appellate Body Report, US – Gambling , para. 141. 
  
42 Appellate Body Report, US – Wool Shirts and Blouses , pp. 14-15.  See also Appellate Body Report,  
Japan – Apples , para. 159. 
 
43 Appellate Body Report, US – Gambling , para. 139. 
 
44 E.g. Appellate Body Report, US – Gasoline , p. 15. 
 
45 (1969) 8 International Legal Materials  679. WT/DS331/R 
Page 12  
 
 justify the initiation of an investigation.  Guatemal a asserts that Mexico also violated Article 5.3 in 
initiating the investigation without properly exam ining the accuracy and adequacy of the evidence 
provided in the application to determine whether the application contained sufficient evidence of 
dumping and injury to justify the initiation.  In pa rticular, Guatemala asserts that Economía could not 
have adequately
 examined the evidence in the application,  as if it had done so, it would not have 
initiated the investigation because it would have de termined that the evid ence was insufficient.  
According to Guatemala, these violations also led to a violation of Article 5.8, as there was insufficient evidence of dumping and inju ry to justify proceeding with the case. 
(b) Mexico 
7.11 Mexico asserts that Article 5.2 is directed at applicants, and does not impose any obligation 
on an investigating authority.  According to Mexico ,  the application contained sufficient evidence of 
dumping and injury that was reasonably available to the applicant in accordance with Article 5.2 and 
the investigating authority properly examined the accuracy and adequacy  of the evidence to justify the 
initiation of the investigation in compliance with Article 5.3.  In Mexico's view, there was, 
accordingly, sufficient evidence to justify pr oceeding with the case under Article 5.8.   
2. Arguments of the third parties 
7.12 The European Communities  asserts that the use of Articles 2 and 3 of the Anti-Dumping 
Agreement to inform the Panel's interpretation of Articl es 5.2 and 5.3 would be correct.  If the Panel 
were to find that the application did not contai n sufficient evidence of dumping and injury under 
Article 5.2, it would not be necessary to also ev aluate the Article 5.3 claim.  According to the 
European Communities, to satisfy Article 5.2, an application should ordinarily contain evidence of 
normal value from a particular producer, or exporter, or an explanation or indication as to why data 
from another firm should be considered repr esentative of that producer or exporter. 
7.13 According to the United States , Article 5.2 does not dictate that an application must contain a 
particular form or quantum of evidence relating to dumping or injury.  What is "reasonably available" 
to the applicant depends on the circumstances of each case.  An investigating authority may initiate an 
investigation based on application evidence of home- market pricing of a producer not named in the 
application, or of a price quote, or relating to only certain models of the product in question, or 
relating to broader tariff classification import data. 
3. Evaluation by the Panel 
(a) Factual background 
7.14 On 18 May 2001, Hylsa S.A. de C.V. filed an  application for initiation of an anti-dumping 
investigation on "standard" welded galvanized a nd black pipes and tubes from Guatemala, imported 
under tariff classifications 7306.30. 01 and 7306.30.99, respectively.
46  The application identified the 
Guatemalan company Tubac as the only known e xporter of the allegedly dumped product.  On 
11 June 2001, the investigating authority, the Ministry of the Economy ( Secretaría de Economía  – 
"Economía") issued a request for fu rther information (a "prevención"47) seeking certain clarifications 
                                                      
46 Exhibit GTM-1.  While the application itself is dated in the year "2000", this is presumably a 
typographical error, as the parties treated the applicati on as having been submitted in 2001, and as it contains 
information up to December of 2000. 
 
47 Exhibit GTM-2. 
 WT/DS331/R 
Page 13 
 
 
  from Hylsa, including with respect to the evidence of normal value48, export price49 and import 
volumes.50  Hylsa responded on 9 July 2001.  In support of the allegation of dumping, the evidence 
before Economía at the time of initiation comprised:   (i) for normal value:  two pieces of evidence – 
an invoice reflecting a sale of galvanized standa rd tubing and a price quote for a potential sale of 
black standard tubing51;  (ii) for export price, import sta tistics from the statistics database of the 
Ministry of Economy "Sistema de Información Co mercial de México" or "SICMEX", as well as 
estimates derived from private import "pedimentos".52  In support of the alleged injury, the evidence 
before the IA comprised data on economic indicators for Hylsa, and the published data from SICMEX 
on the total volume and value of imports for the two tariff lines that included, but were not limited to, 
the product under investigation.53  The Mexican investigating authority initiated the investigation on 
24 August 2001, indicating that it had largely relied the evidence submitted by the applicant 
pertaining to normal value54, export price55 and import volumes56 with minor adjustments.   
                                                      
48 Exhibit GTM-2, p. 6, questions 18-23.  The ques tions pertained to:  why the application referred to 
an invoice of "Tubac" as exporter, when the actual invoice submitted pertaine d to Ferretería Ferrominera ("FF"); 
the domicile of the latter (as the invoice indicated that the buyer, but not the seller, was located in Guatemala); and normal value and adjustments for black standard tubing, as the invoice related only to galvanized standard 
tubing. 
 
49 See question 17 of Exhibit GTM-2.  The question concerned adjustments for freight, insurance and 
credit terms. 
 
50 Exhibit GTM-2, p. 6, questions 3-4. 
 
51 See Initiation Determination, Exhibit GTM-4, paras. 62-66.  See also Exhibit GTM-1, response to 
Question 21 and Exhibit GTM-3, response to Question 21.  The invoice was submitted to the Panel as Exhibit 
MEX-1; the price quote was submitted (as Business Confid ential Information) to the Panel in Exhibit MEX-26. 
 
52 In the Initiation Determination, Exhibit GTM-4, para . 55, this export price evidence is described as a 
document for each product with correspond ing invoice.  See Exhibit GTM-1, Vol. 1, response to Question 17 
and associated annexes. 
 
53 Exhibit GTM-1, Volume 2, Section III. 
 
54 Exhibit GTM-4, paras. 62 and 63 indicated that Economía made slight adjustments to the applicant's 
proposed exchange rates to be applied to the invoice and the price quote.  However, Exhibit GTM-4, para. 65 states:  "The Ministry accepted the in formation provided by the applicant .. .  The Ministry based its calculation 
of the weighted average normal value for each product on ..." the invoice an d the price quote.  In respect of 
adjustments to normal value, para. 67 indicates:  "The  Ministry agreed to adjust  the normal value for credit 
according to the information and met hodology proposed by the applicant." 
 
55 Exhibit GTM-4, "Determination Accepting the Appli cation of the Interested Party and Declaring the 
Initiation of the Anti-dumping Investigation on Imports of Standard Pipes and Tubes (merchandise currently 
classified under tariff classification 7306.30.01 and 7306.30.99 of the General Import Tax Law) exported from 
Guatemala, irrespective of the country of  provenance, 24 August 2001".  On export price, in paras. 56-57, the 
determination indicates that Economía accepted the appli cant's information, and calculated an export price on 
that basis.  Economía rejected the applicant's propose d adjustments for freight and insurance (and replaced this 
with its own adjustment on the basis of SICMEX) and credit (and made no credit adjustment).   See paras. 59-60. 
 
56 As we discuss further below, in respect of import volumes, at the time of initiation, Economía had 
access to official SICMEX statistics, as well as to  the SICMEX statistics submitted by the applicant. 
 WT/DS331/R 
Page 14  
 
 (b) Analysis 
7.15 In respect of Economía's initiation of the inv estigation, Guatemala has made claims of 
violation of three provisions:  Ar ticles 5.2, 5.3 and 5.8 of the Anti-Dumping Agreement .
57  At the heart 
of all of these claims is Guatemala's allegation th at the evidence pertaining to dumping and to injury 
on which Economía based its initiation decision was "insufficient" in the sense of Article 5.3, in a 
number of respects, such that Economía's evaluation of that evidence was inad equate for the purposes 
of Article 5.3.  This central question thus is the main  focus of our analysis.  In order to structure this 
analysis, we first cite the text of these provisions and consider the nature of, and relationship among, 
the obligations that they contain.   
7.16 Article 5.2 of the Anti-Dumping Agreement  provides, in part:   
"An application under paragra ph 1 shall include evidence of (a) dumping, (b) injury 
within the meaning of Article VI of GATT 1994 as interpreted by this Agreement and 
(c) a causal link between the dumped imports and the alleged injury.  Simple 
assertion, unsubstantiated by relevant eviden ce, cannot be considered sufficient to 
meet the requirements of this paragraph.   The application shall contain such 
information as is reasonably available to  the applicant on the following:  ...  
(iii) information on prices at which the product in question is sold 
when destined for consumption in the domestic markets of the country or countries of origin or export (or, where appropriate, information on the prices at which the product is sold from the country or countries of origin or export to a third country or 
countries, or on the constructed valu e of the product) and information 
on export prices or, where appropriate, on the prices at which the product is first resold to an independent buyer in the territory of the importing Member; 
(iv) information on the evolution of the volume of the allegedly 
dumped imports, the effect of these imports on prices of the like 
product in the domestic market and the consequent impact of the imports on the domestic industry, as de monstrated by relevant factors 
and indices having a bearing on the state of the domestic industry, such as those listed in paragr aphs 2 and 4 of Article 3." 
7.17 Article 5.3 provides:   
"The authorities shall examine the accuracy  and adequacy of the evidence provided in 
the application to determine whether ther e is sufficient evidence to justify the 
initiation of an investigation." 
7.18 Article 5.8 reads, in part:   
                                                     
 
57 We address below, paras. 7.346-7.347, Guatemala's claim under Article 5.4 – that Economía should 
have, but did not, reassess "standing" during the course of the investigation as the covered product scope was 
enlarged – in the context of  Guatemala's other claims and arguments concerning those changes in the product 
scope.    
 WT/DS331/R 
Page 15 
 
 
  "An application ... shall be rejected and an investigation shall be terminated promptly 
as soon as the authorities concerned are satisfi ed that there is not sufficient evidence 
of either dumping or of injury to justify proceeding with the case ...". 
7.19 Article 5.2 refers to the contents of the app lication by the domestic industry requesting the 
initiation of an investigation.  It requi res that the application shall include, inter alia , information on 
certain specific areas to the extent  that it is "reasonably available" to  the applicant.  In this regard, 
Article 5.2 states that "[s]imple assertion, unsubstan tiated by relevant evidence, cannot be considered 
sufficient to meet the requirements of this paragraph" .  Article 5.3 makes it clear that the investigating 
authority has to examine the accur acy and adequacy of the evidence provided in the application to 
determine whether there is sufficien t evidence to justify the initiation of  the investigation.  In any case 
where the investigating authority ju dges the evidence in the application not to be a sufficient basis for 
initiating an investigation, Article 5.8 requires the au thority to reject the application and terminate the 
investigation.   
7.20 Mexico suggests that where th e evidence in the application is sufficient to initiate an 
investigation, the mere fact that an investigating authority initiated the investigation indicates that it 
examined the evidence in th e application and determined that it was sufficient to justify initiation for 
the purposes of Article 5.3.  Mexico cites the EC-Bed Linen  panel report in support of this 
proposition.58  We note that the facts and legal issues in  that case were different from the case before 
us.  In particular, in contrast to Guatemala's cl aim before us, India's claim in that case was purely 
process-related;  that is, India claime d that the European Communities failed to examine  the accuracy 
and adequacy of the evidence before initiating the in vestigation, but made no claim in respect of the 
sufficiency of that evidence.59   Although the EC-Bed Linen  panel found that Article 5.3 does not 
address the nature  of the examination to be carried out , and does not require the investigating 
authority to explain how it performed its examination60, we do not read that case as standing for the 
proposition implied by Mexico61, namely that Article 5.3 imposes no substantive  obligation upon an 
investigating authority in respect of its assessment of the sufficiency  of the evidence before it.  Thus, 
in our view, the findings of the EC-Bed Linen  panel are not germane to the substantive issue before 
us, which concerns Economía's assessment of the suffi ciency of the evidence be fore it at the time of 
initiation.   
7.21 Although there is no express reference to evidence of "dumping" or "injury" or "causation" in 
Article 5.3, evidence on the three elements neces sary for the imposition of an anti-dumping measure 
may be inferred into Article 5.3 by way of Article 5.2.  In particular, Article 5.2 requires that the 
application contain evidence on dumping, injury  and causation, and Article 5.3 requires the 
investigating authority to satisfy itself as to the accuracy and adequacy of "the evidence provided in 
the application" to determine that that evidence is  sufficient to justify initiation.  Thus, reading 
Article 5.3 in the context of Article 5.2 makes clear that the evidence to which Article 5.3 refers is the 
evidence in the application concerning dumping, injury  and causation.  We note, as have past panels 
in this context, that the meanings of the concepts  of "dumping", "injury" and "causation" in Article 5 
                                                      
58 Panel Report, EC - Bed Linen , paras. 6.199-6.201. 
 
59 See Panel Report, EC - Bed Linen , para. 6.200. 
 
60 We note that the panel in Mexico - Corn Syrup  (para. 7.102) similarly concluded that Article 5.3 did 
not itself establish any obligation to make, or to make known, a determination concerning issues underlying the 
decision to initiate. 
 
61 Mexico's response to question 137 from the Panel. 
 WT/DS331/R 
Page 16  
 
 are the same as those in the relevant substantiv e provisions of the Agreement (i.e., Article 2 for 
dumping and Article 3 for injury and causation).
 62   
7.22 We must emphasize, however, that while the c oncepts are the same, we agree with Mexico63 
that it is not necessary for an investigating authorit y to have irrefutable proof of dumping or injury 
prior to initiating an anti-dumping investigation.64  We note in this respect that Article 5.1 refers to the 
initiation of an investigation "to determine the existence, degree and effect of any alleged dumping " 
(emphasis added), and that  Article 5.2 refers to  "alleged injury", the "allegedly dumped product" and 
"allegedly dumped imports".  We also are mindful that an anti-dumping investigation is a process 
where certainty on the existence of all of the el ements necessary in order to adopt a measure is 
reached gradually as the investigation moves forward.65  While we disagree with Mexico that the 
information contained in a request for initiation does not have to be more than a "mere indication" 
("mero indicio ")66, we note that Mexico nevertheless acknow ledges that the investigating authority 
must verify that the evidence presente d constitutes "reasonable indications" ( indicios razonables ) in 
order to initiate.67   
7.23 Turning now in more detail to the provisions  cited by Guatemala, we first consider 
Article 5.2.  Here, a claim under Article 5.2 may fo cus on whether an application contains information 
"reasonably available" to the applicant , but the textual differences between Articles 5.2 and 5.3 lead 
us to observe that the "reasonable availability" of the evidence to the applicant is not determinative as 
to the "sufficiency", in the sense of Article 5.3, of that evidence as the b asis for an investigating 
authority's decision to initiate.  By the same token,  in examining whether there is sufficient evidence 
to justify initiation, an investigating authority is not precluded from gathering information additional 
to that in the application so as to corroborate  and verify the contents of the application.68    
7.24 That said, the chapeau of Article 5.2 makes clear  that in an application, "[s]imple assertion, 
unsubstantiated by relevant evidence,  cannot be considered sufficient to meet the requirements of this 
paragraph."  Therefore, for the purpose of Article  5.2, the applicant must submit a degree of actual 
evidence of alleged dumping allegedly causing inju ry, and for the purpose of Article 5.3, that 
evidence must constitute an objectively sufficient  factual basis to initiate an investigation.  While the 
absolute threshold of sufficie ncy will depend upon the circumstances of a given case, Article 5.3 
makes clear that the determination of sufficiency  must be based on an asse ssment of the "accuracy" 
and "adequacy" of the information.  In this context,  we are mindful that a piece of evidence that on its 
own might appear to be of little or no probative value could , when placed beside other evidence of the 
                                                      
62 Panel Report, Guatemala - Cement II , para . 8.35;  Panel Report, Argentina – Poultry Anti-Dumping 
Duties, paras. 7.61, 7.62. 
 
63 "... it is clear that such evidence does not necessarily  have to be of the quality that would be 
necessary to support a preliminary or final determinati on" (emphasis in original).  First written submission of 
Mexico, para. 9. 
 
64 Panel Report, Guatemala - Cement II , para . 8.35. 
 
65 Panel Report, Guatemala - Cement II , paras . 8.35, 8.36;  Argentina – Poultry Anti-Dumping Duties, 
paras. 7.61, 7.62. 
 
66 Second oral submission of Mexico, para. 5(i). 
 
67 See Mexico's response to question 136 from the Panel. 
 
68 Panel Report, Guatemala – Cement II,  para. 8.62;  Panel Report, US – Softwood Lumber V , 
para. 7.75 (point not appealed). 
 WT/DS331/R 
Page 17 
 
 
  same nature, form part of a body of evidence that, in  totality, was "sufficient".  We are, furthermore, 
aware that it is appropriate for a panel to examine the evidence before the in vestigating authority at 
the time of the decision in the light of the investigating authority's own methodology and to review the decision on its own terms.  As we have alr eady mentioned, we are not entitled to conduct a de 
novo  review of the investigating authority's determinations.
69     
7.25 Turning to Article 5.8, this provision requir es the rejection of an application and prompt 
termination of the investigation as soon as the aut horities concerned are satisfi ed that there is not 
sufficient evidence of either dumping or injury to  justify proceeding with the case.  The portion of 
Article 5.8 that applies to the pre-initiation phase of  an anti-dumping investiga tion ("an application ... 
shall be rejected ...") does not impose additional subs tantive obligations beyond those in Article 5.3 
on the authority in connection with the initiation of an investigation.70  That is, if there is sufficient 
evidence to justify initiation under Article 5.3, there can be no violation of Article 5.8 in not rejecting 
the application at that point.71 
7.26 Recalling that Guatemala's claims under the thr ee provisions – Articles 5.2, 5.3 and 5.8 – are 
focused on the alleged insufficiency of the info rmation on which Economía based its decision to 
initiate, we first examine Guatemala's claims under Ar ticle 5.3.  In so doing, and in accordance with 
our standard of review, we will consider whethe r an unbiased and objective investigating authority, 
taking into account the accuracy and adequacy of the facts before it, could properly have determined 
that there was sufficient evidence to justify the initiation of an anti-dumping investigation.72   
7.27 We will first examine Guatemala's allegations  on the evidence concerning alleged dumping, 
and then will take up Guatemala's a llegations on the evidence of alleged injury and causation.  In this 
regard, our approach will be consiste nt with that of past panels, which have evaluated claims as to an 
authority's assessment of the suffici ency of evidence used for initiati on in the light of the pertinent 
substantive requirements for dumping and injury determ inations (i.e., Article 2 for evidence related to 
dumping and Article 3 for evidence related to injury).73  We too shall look to those provisions not in 
terms of consistency of the initiati on decision with them, but rather for guidance as to the substantive 
sufficiency (in the sense of Article 5.3) of the evidence of alleged dumping and alleged injury on 
which that decision was based.  We reiterate that at the time of initiation an investigating authority is 
not required to have before it the quantity and qua lity of evidence that would be necessary to support 
a preliminary or final determination. 
(i) Initiation evidence of dumping 
 7.28 We note first that Guatemala's complaint c oncerning the sufficiency of the evidence of 
alleged dumping is limited to the evidence pertaining to normal value.  That is, Guatemala raises no 
issue concerning the evidence on export prices.  (Thi s evidence consisted of the unit value of imports 
of galvanized and black tubes and pipes based on SICMEX information for the period of 
                                                     
 
69 See e.g. Appellate Body Report, US – Countervailing Duty Investigation on DRAMS, paras. 141-152. 
 
70 We find support in Panel Report, Guatemala – Cement II , paras. 8.72-8.75. 
 
71 In response to questioning, Guatemala confirmed th at its Article 5.8 claim flows from its claims 
under Article 5.2 and/or Article 5.3, both jointly and independently.  See Guatemala's response to question 3 
from the Panel. 
 
72 This approach is similar to that of previous panels that have examined claims under Article 5.3 of the 
Anti-Dumping Agreement .  See, Panel Report, Mexico –Corn Syrup , paras. 7.91-7.110;  Panel Report, Guatemala 
– Cement II , paras. 8.29-8.58;  Panel Report, Argentina - Poultry Anti-Dumping Duties , paras. 7.60 ff. 
 
73 E.g. Panel Report, Guatemala - Cement II, paras. 8.35, 8.36 and 8.45.  WT/DS331/R 
Page 18  
 
 investigation, as well as one customs document for each product group (galvanized and black, 
respectively) with corresponding invoices, provided by Hylsa.
74)  Guatemala does argue, however, 
that the deficiencies that it alleges in the normal va lue evidence meant that th at evidence could not be 
compared on a "fair" basis with the export price evidence.   
7.29 Concerning the normal value evidence, Mexico's initiation notice indicates that Economía 
generally accepted the evidence submitted by the a pplicant, without much further analysis or 
elaboration: "The applicant suggested calculating th e normal value for both products [...], on the basis 
of home-market sales prices in the Republic of Guatemala ..."75;  "For galvanized standard pipes and 
tubes, the applicant submitted a sales invoice fro m a Guatemalan company corresponding to the 
period of investigation."76;  "For black standard pipes and tubes, the applicant supplied a quote from a 
Guatemalan company corresponding to the period of investigation."77 The Ministry accepted the 
information provided by the applicant...".78   
7.30 In particular, at the point of in itiation, this evidence consisted of: 
•  one (apparently computer-generated) invoice for one sale, on 30 August 2000, by 
Ferretería Ferrominera, a distributor, to Atlantida SA, of 1,200 pieces of "ligero" galvanized (not black) steel pipes and tubes in three different diameters (1/2", 1" and 
1-1/4").
79  At the average rate of exchange for 200080, the value of this sale was 
approximately US$5,900.   
•  one (handwritten) price quote, dated 15 December 2000, by [XX - BCI.] , a 
distributor, [XX - BCI] , for a total of [ XX – BCI]  pieces of "liviano" pipes in 6 
different diameters (1/2", ¾", 1", 1-1/2", 2-1/2", and 4").81  At the average rate of 
exchange for 2000, the total value of the quoted products was approximately [ XX – BCI]. The document does not specify whether these are black or galvanized pipes, 
although Hylsa submitted it as evidence of pricing in the Guatemalan market for black 
(i.e., not galvanized) pipe. This document explicitly indicates in large print that "prices are subject to change ". 
7.31 It is apparent from the "prevención" that, prior to initiation, the Mexican investigating 
authority made an effort to clarify certain aspect s of the normal value evidence (i.e., the invoice) 
accompanying the application.  First, the "prevenc ión" noted that the invoice covered only galvanized 
pipes and requested clarification as to the pricing of black pipes.  (It was in response to this question 
                                                     
 
74 Exhibit GTM-4, para. 55. 
 
75 Exhibit GTM-4, para. 61. 
 
76 Exhibit GTM-4, para. 62. 
 
77 Exhibit GTM-4, para.63. 
 
78 Exhibit GTM-4, para. 65. 
 
79 See Exhibit MEX-1.  In particular, 1,000 pieces  1/2" x 6 mts.;  100 pieces 1" x 6 mts; 100 pieces 
1-¼" x 6 mts. 
 
80 http.//www.worldpress.org/prof iles/Guatemala.cfm.  The source cited by Worldpress for the 
exchange rate information (7.7632 quetzales per US dollar in 2000) is the CIA World Factbook . 
 
81 In particular, prices were quoted for 3-14 units, 6 me ters in length, of each of the various diameters. 
½, ¾, 1, 1 ½, 2 ½, 4 inch tubes.  See Exhibit MEX-26. WT/DS331/R 
Page 19 
 
 
  that Hylsa submitted the price quote.)  The "prevenci ón" also asked why the in voice was in respect of 
a Guatemalan company (Ferretería Ferrominera) othe r than the exporter, Tubac, identified in the 
application82, and sought details concerning the domicile of  Ferretería Ferrominera (noting that the 
document indicated that the buyer was located in Guatemala, but not the vendor), and about exchange rates.
83  The "prevención" further asked why there was,  originally, no adjustment for credit terms, 
despite the fact that the invoice indicated that Fe rretería Ferrominera had granted 30 days credit.  
Economía largely accepted Hylsa's responses to these questions, including an adjustment for credit 
terms and a modification of the exchange rate used.84  
7.32 We now consider, in the light of the specific arguments raised by Guatemala, whether an 
unbiased and objective investigating authority, lookin g at these facts, could properly have determined 
that there was sufficient evidence of dumping to justif y the initiation of an anti-dumping investigation.   
7.33 Guatemala argues that the invoice and the pric e quote were insufficient for the following 
reasons:  (1) that the prices were not those of Tubac, the one known and named Guatemalan exporter, 
which accounted for nearly all Guatemalan exports to Mexico, but were those of two Guatemalan 
distributors; (2) that the evidence related to an "insignificant subset" of the investigated product 
temporally, and in terms of volume and product cove rage, in that the evidence corresponded to only 
one single transaction and one single price offer on two individual days during the period of investigation, the volumes involved were very sm all, and the product c overage was very limited vis-à-
vis the overall scope of the domestic  product, and indeed did not reflect the specific product (A-53 
pipe) identified in the application as the investigat ed product; (3) that no adjustment was made by 
Economía to take into account the level of trade (d istributor) of the emitters of the invoice and price 
quote; and (4) that the price quote, not representing a completed transaction, was inherently invalid as 
evidence.  Thus, for Guatemala, the problems with  both the quantity and the quality of the evidence 
were such that a proper assessment  of it by Economía could not have resulted in a decision to initiate 
the investigation. 
7.34 Given these allegations by Guatemala, we have considered in detail the normal value 
evidence, and have identified a number of inter-related concerns in respect of:  the sufficiency of the 
nexus with producer/exporter pricing in the Guatemalan home market for the product under 
investigation; the isolated nature of the inform ation in terms of temporal coverage, volume, and 
product coverage; and, as a result, the comparability of  this evidence with that on export pricing.  We 
emphasize that our assessment is in respect of th e normal value evidence as a whole that was before 
the investigating authority, with no one of the various concerns that we outline below necessarily 
being determinative.   
7.35 First, we note that, as alleged by Guatemala,  none of the normal value evidence pertained to 
Tubac, the only identified exporter, which accounted  for almost all production and exports of the 
investigated product; instead, the evidence pertained to  two distributors.  Mexico does not dispute that 
the prices in the invoice and price quote were not T ubac's, and instead argues that these prices were 
reflective of prevailing prices in Guatemala.  We do not here mean to imply that, at the stage of 
initiation, an investigating authority must have pricing documentation from every domestic producer 
                                                     
 
82 In particular, Exhibit GTM-2, Question 18 reads:  "Please explain why Annex 2 refers to Tubac SA 
as having issued the invoice presented for the purposes of  substantiating the normal value, since the invoice in 
question (Annex 2.1) is that of the company Ferretería Ferrominera." 
 
83 See Exhibit GTM-2, Questions 18-23, and responses thereto in Exhibit GTM-3. 
 
84 For the invoice, Mexico applied the exchange rate published by the Bank of  Guatemala for the date 
of the invoice, rather than  the average monthly rate from the same source proposed by the applicant.  For the 
price quote, Mexico applied the exchange rate for the date of the quote, rather than the average rate proposed by 
the applicant.  WT/DS331/R 
Page 20  
 
 or exporter, or even any domestic producer or exporte r.  Indeed, we recognize that it can be extremely 
difficult for an applicant to obtain evidence of hom e market pricing, especially from its competitors, 
the producers or exporters.  Nevertheless, dumping is a company-specific practice, and this is 
reflected in the Agreement's provisions concerni ng the determination of dumping in respect of 
particular producers or exporters (see, e.g., the vari ous references in Article 2.2 to "the exporter or 
producer investigated"
85, and the requirement in Article 6.10 to calculate dumping margins for 
individual producers or exporters86).  Where, as is the case here , it is obvious on its face that the 
normal value evidence before the authority at the ti me of initiation does not pertain to a producer or 
exporter and indeed pertains to a different level of  trade, and may not even reflect products produced 
in the exporting country, the authority should make its  best endeavours to verify that that evidence 
reflects the prevailing home market pricing at the level of producers and/or exporters.   
7.36 In this case, Mexico has pointed to no eviden ce, and indeed does not argue, that Economía 
took any steps to determine whether the products reflected in the invoice and price quote were 
reflective of Tubac's prices – in spite of the f act that Tubac was the only identified Guatemalan 
producer or exporter of the product – or even that these products were of Guatemalan origin.87  Nor 
does Mexico point to any evidence, or argue, that  Economía asked Hylsa to confirm the Guatemalan 
origin of the products reflected in the invoice and price quote, or to provide any information as to whether and how these prices should be adjusted to reflect the producer/exporter level (e.g., by 
subtracting an amount for distributor mark-up).
88   
7.37 Second, the temporal, volume and product coverage of the evidence was extremely limited 
and isolated, such that in our view this evidence wa s reflective of only an insignificant subset of the 
product and prices in question.  In respect of temp oral coverage, the invoice relates to only a single 
isolated transaction on a single day, and the price qu ote also relates to only a single isolated potential 
transaction that could have taken place on a single day.  There is no dispute that the dates of the 
invoice and the price quote were both within the peri od of investigation, but the fact that the home 
                                                      
85 For example, Article 2.2.2.1 ("costs shall normally be calculated on the basis of records kept by the 
exporter or producer under investigation ") (emphasis added);  Article 2.2.2  "the amounts for administrative, 
selling and general costs and for profits shall be based on actual data pertaining to production and sales in the 
ordinary course of trade of the like product by the exporter or producer under investigation ") (emphasis added); 
and the subparagraph s of Article 2.2. 
 
86 Article 6.10 stipulates:  "The authorities shall, as a rule, determine an individual margin of dumping 
for each known exporter or producer concerned of the product under investigation ...". 
 
87 Response of Mexico to question 17 from the Panel.  For example, (question 17(c)) we asked Mexico 
whether, in its assessment of the qua lity and accuracy of the submitted evid ence, Economía had inquired as to 
what kind of company Ferretería Ferrom inera was, and to cite the relevant  portion of the record.  Mexico's 
answer does not indicate that Economía undertook any such an alysis.  Rather, Mexico simply states that "[I]t is 
a  company that sold the investigated goods at issu e in the Guatemalan market during the period of 
investigation".  We also asked Mexico (question 17(e)) what specific steps Economía had taken to assure itself 
that the products reflected in the in voice were produced in Guatemala, and to cite the relevant documentation.  
Again, Mexico points to no steps taken by Economía, but simply replies that Economía "found that those were 
the prices actually applied in the Guatemalan market during the period of investigation". 
 
88 See Mexico's response to question 17(h) from the Panel.  Mexico did not respond to our question as 
to level of trade adjustments, but instead indicated that th e invoice prices were adjusted for credit.  (The terms of 
the invoice included 30 days credit.)  We note as well that although in the "prevención" Economía asked Hylsa to clarify "how it was ascertained that there were no ... adjustments applicable to the normal value" other than 
the credit adjustment, Hylsa did not respond to this questio n.  There is no evidence, and Mexico does not argue, 
that Economía followed up with Hylsa in respect of this  non-answered question, in any way or at any time 
during the investigation. 
 WT/DS331/R 
Page 21 
 
 
  market pricing evidence for each broad product sub- group (i.e., galvanized and black pipe) pertained 
only to a single day out of the six-month-long period  of investigation raises substantial questions as to 
whether that evidence was representa tive of pricing during that period as a whole.  Mexico does not 
argue, and there is no evidence, that Economía sought confirmation from Hylsa that, or made any other effort to determine whether, this evidence wa s representative of the period as a whole.  In fact, 
Mexico confirmed to us the contrary, stating that  "since the information submitted by the applicant 
was dated within the period of investigation, [Economía] did not require  additional normal value 
information".
89  Mexico appears to be arguing, in other words, that so long as a piece of evidence is 
dated within the period of investigation, even if it represents only a single day during that period, this 
information is – by definition, and without more  – sufficiently representative of the period of 
investigation as a whole for purposes of initiation.  We  disagree since it is indeed quite possible that 
an individual, isolated transaction may be an ab erration from the typical prevailing prices and/or 
conditions, and therefore if the applicant has provi ded only such temporally isolated evidence, the 
authority should not assume without some corrobora tion that this evidence is representative of the 
period as a whole.    
7.38 Concerning product volume and coverage, the normal value evidence was similarly limited 
and isolated.  In particular, the transaction in the invoice was for 1,200 pieces of galvanized pipe with 
a total weight of about 8,000 kg90 and a total value of about US$6,0 00, and the products were in only 
three diameters (1/2", 1" and 1-1/4") of a single wa ll thickness schedule ("ligero").  The coverage of 
the price quote was even more limited, as it reflected just [ XX - BCI ] pieces of black pipe weighing a 
total of about [ XX - BCI ]91, with a total value of a mere US$ [ XX - BCI ].  While the products were in 
six diameters (1/2", ¾", 1", 1-1/2", 2-1/2" and 4"), all were of a single wall thickness schedule 
("liviano").  The extreme limitation of the size ranges covered by the invoice and price quote is 
evident from a comparison with the size range of c overed products of Guatemalan origin identified by 
Hylsa in its response to the "prevención".92  In particular, in that submission, Hylsa identified a total 
of 62 dimensions (i.e., diameter and wall thickness combinations).  Taking into account that each of 
these dimensions could apparently exist in both ga lvanized and black finish, at the moment of 
initiation Economía had information that there could be a total of 124 different products.  Given the 
very substantial variati ons among these dimensions (a range of ½" diameter with a wall thickness of 
0.095" to 4" diameter with a wall thickness of 0.237") we do not see on what basis it was possible for Economía to have assumed, with no further inquir y or corroboration, that the very small subset 
reflected in the invoice and price quote, was repres entative of the prices for the overall investigated 
dimensional range.  Furthermore,  as inferred by Guatemala and confirmed by Mexico, all of the 
products covered by the invoice corresponded to BS-1387 pipe.
93,94  In other words, the products did 
                                                      
89 Mexico's response to question 17(g) of the Panel. 
 
90 Derived from the conversion factors in Annex 15 to Hylsa's reply to the "prevención".  Before us, 
Mexico argues that Economía had consid ered the invoice to be representativ e in terms of volume because the 
size of the transaction involved was several times larger  than the average size of Tubac's home market sales as 
reflected in Tubac's response to the exporter's questionnair e.  This argument is irrele vant to the present claim, 
however, given Economía's total lack of any information relating to Tubac's home market sales at the time of 
initiation. 
 
91 Derived from the conversion factors in Annex 15 to Hylsa's reply to the "prevención". 
 
92 Exhibit GTM-3, answer to question 16. 
 
93 Guatemala's response to question 7 of the Panel. 
 
94 Mexico's response to question 174 of the Panel. 
 WT/DS331/R 
Page 22  
 
 not correspond to the A-53 specification, which the application identified as the predominant product 
among the investigated merchandise.   
7.39 Here again, there is no evidence, nor does Mexico  argue, that before initiation either Hylsa or 
Economía undertook to establish that the prices for the dimensions of pipe in the invoice and price 
quote were representative of the range of sizes covered by the investigation, or that the prices for BS-
1387 pipe were representative of a broader range of specifications of investigated products, in 
particular of the predominating A-53 pipe.  Nor is there evidence that either Hylsa or Economía sought information that might have been needed to ad just those prices to make them so representative.  
We asked Mexico: "Is there any indication in the Initiation Determination or in the record that 
Economía assessed whether the pip es in the invoice and the price quote might be considered to be 
sufficiently representative of the product at issue?"  Mexico responded that Economía had analysed 
the invoice and the price quote and found that "the  prices given in both sources correspond to the 
investigated merchandise, are for the Guatemalan market, and were in effect during the period of 
investigation".
95  We view this as an argument by Mexico that so long as a piece of evidence pertains 
to some part (no matter how restricted) of the produc t range covered by an application, that evidence 
– by definition and without more – is sufficiently representative of th at product range for purposes of 
initiation.  Again, we cannot agree with such a pr oposition.  Where the evidence pertains to only a 
thin sliver of a broad overall product range , the authority should not assume without some 
corroboration that this evidence represents  pricing for the full product range.   
7.40 As in respect of company and temporal re presentativity of the evidence at the time of 
initiation, we do not mean to suggest at all that an investigating authority must have documentary 
evidence relating to every individual product covered by a given application.  Rather, our view is that 
where the product coverage of the evidence, as here, is quite limited, the investigating authority needs 
to take the appropriate steps to determine whether that evidence is representative of the full product 
range, and to seek further information, including as to any adjustments, that would be necessary to 
render it so representative.   
7.41 We emphasize here that we disagree with Guat emala's argument that the price quote, because 
it did not represent a completed transaction and becau se of its indication that the quoted prices were 
subject to change, was inhe rently invalid as evidence.96  We have discussed above our concerns as to 
the lack of evidence that the particular price quote that was before Economía was representative of 
home market pricing for the range of Guatemalan-p roduced products covered by the scope of the 
investigation for the period of investigation.  These  concerns have to do with the specifics of that 
particular price quote, and not with the probative value of price quotes as such.  Indeed, in another 
case there could well be a situation where adequa tely corroborated and representative price quotes 
constituted sufficient evidence of alleged dumping.   
7.42 Finally, we recall that although Guatemala has not raised any concerns  in respect of the 
evidence on export prices that was before Economía, it has argued that the problems it identified in 
respect of the normal value evidence, as discussed  above, would have meant that any comparison of 
that evidence and the evidence of export pricing (i .e., the calculation of the alleged dumping margin) 
was not "fair" in the sense of Article 2.4.  We  share the concern raised by Guatemala over the 
comparability of the evidence on normal value with that  on export pricing.  In particular, we recall 
                                                      
95 Mexico's response to question 19(c) from the Panel. 
 
96 First written submission, para. 74.  We note also Guatemala's argument in its rebuttal submission that 
price quotes have no legal status within Guatemala's domestic legal framework.  In response to Panel 
questioning on this issue, Mexico asserted that the domestic legal status of pr ice quotes in Guatemala was 
irrelevant, "given that, regardless of the obligation to apply the agreed price, a price quote obviously provides a 
reasonable indication of market selling prices".  See Mexico's response to question 144 from the Panel. WT/DS331/R 
Page 23 
 
 
  that there is even no evidence that the merchandi se in the invoice or price quote was of Guatemalan 
origin, and that the invoice and the price quote each  represented distributor-level prices for a single 
transaction or potential transaction on a single day, for an extremely small subset of the products 
covered by the investigation, including the fact that  this subset was limited to a technical specification 
other than the one identified by the application as the predominant specification in the market.  By 
contrast, the export price information reflected the full spectrum of products imported by Mexico 
from Guatemala, over the entire period of investigati on, at the level of the Guatemalan producer or 
exporter.  Differences of this ki nd – which, we emphasize, are eviden t from the face of the evidence in 
question – typically lead to a distortion of the normal value vis-à-vis  the export price, and thus if not 
adjusted for could give rise to apparent margins of dumping where no dumping in fact exists.  Yet, 
according to the notice of initiation, the only adjust ments that were made to the normal value and 
export pricing evidence (i.e., the credit ad justment to the prices in the invoice97 and credit, freight and 
insurance adjustments to the export pricing evidence98) had nothing to do with the problems that we 
have identified.  It is thus clear to us that af ter making these (unrelated) adjustments, Economía based 
its determination of the sufficiency of the ev idence of the existence of dumping on a simple 
comparison of the prices that appear in the invoice and price quote with the export price information.  
Nor is there any evidence, and Mexico does not ar gue, that Economía took any steps to consider 
whether any further adjustments would have been  necessary to take into account in the price 
comparisons the above-identified problems in the nor mal value evidence, so as to ensure that the 
allegation of dumping was well-founded. 
7.43 We have carefully reviewed the record as to the evidence of dumping that was before 
Economía at the time of the initiation.  We consider  that the above-discussed problems in the evidence 
pertaining to normal value (the invoice and the price quote) are obvious on the face of those two documents and thus should have been, but were not, taken into acc ount in Economía's assessment of 
the sufficiency of the evidence of dumping.  Given these obvious problems in the normal value 
evidence, which were neither resolved nor addr essed by Economía, in our view an unbiased and 
objective investigating authority could not have concluded that there was sufficient evidence of 
dumping to justify the initiation of an anti-dumping i nvestigation under Article 5.3.  We therefore find 
that Economía did not act consistently with Mexico 's obligations under that provision in performing 
its assessment of the sufficiency of the evidence of dumping.   
(ii) Initiation evidence of injury 
7.44 Guatemala asserts that the Mexican investig ating authority did not properly examine the 
adequacy and accuracy of the evid ence relating to injury – in part icular, the volume of the dumped 
imports – to ensure that it was sufficient to jus tify initiation for the purposes of Article 5.3 of the Anti-
Dumping Agreement .  Rather, according to Guatemala, the investigating authority accepted the 
evidence submitted by the applicant concerning total import volumes for the two tariff lines 
concerned without any independent evaluation, and with no downward adjustment for products 
imported under the same tariff lines that we re not covered by the application.   
7.45 To recall, in the application, as evidence of the volume of the dumped imports, Hylsa 
submitted the statistics published by SICMEX on th e total volume of imports under the two tariff 
lines (7306.30.01 and 7306.30.09) within which the pr oducts named in the application were imported.  
There is no disagreement between the parties that th e import information at the tariff-line level that 
was before Economía at the time of initiation included  the products under investigation.  The issue 
raised by Guatemala is that because Hylsa a nd Economía recognized, as of the time that the 
                                                     
 
97 Initiation Determination, (Exhibit GTM-4), para. 67 . For the price quote, no credit adjustment 
apparently was needed, as it specified cash payment. 
 
98 Initiation Determination, (Exhibit GTM-4), para. 58. WT/DS331/R 
Page 24  
 
 application was submitted, that this information also covered an unidentified volume of non-
investigated products, the information was insuffici ent as evidence of the volume of the allegedly 
dumped imports, for purposes of initiation.   
7.46 Turning first to the application, Hylsa's respon se to question 6 of the application questionnaire 
format gives the first indication of this issue.  The question reads:   
"In the event that the tariff lines indi cated include products other than 
the investigated product, the following information should be 
provided:  (a) what are the products in question;  (b) what, in your estimation, is the share of the investigated product in total imports entering under these lines;  (c) an explanation of the methodology 
used and calculations made for the purposes of your estimate."
99 
Hylsa responded: 
 
"(a) As concerns tariff line 7306.30.01 (galvanized), there are pipes and tubes corresponding to the tariff line description, under which 
galvanized structural tubing and conduit tubing can be found.  As to 
tariff line 7306.30.99 (black), there are pipes and tubes corresponding to the tariff line description, under which black structural tubing can 
be found.  (b) Hylsa has no basis for making an estimate or calculating the percentage of impor ts of other products entering 
under those lines.  (c) N/A".
100  
Thus, the application makes clear Hylsa's admission  that the description of the products classified 
under the two relevant tariff lines was broader than th e applicant's description of the product that was 
the subject of the application (by virtue of including structural and conduit tubing), but that Hylsa could make no estimate of the amount of impor ts of those non-investigated products.    
 
7.47 Economía pursued this issue in the "prevenci ón" with a view to establishing the respective 
proportions of the total imports entering under the ta riff lines concerned that were accounted for by 
the product under investigation and by non-investigat ed products.  In particular, the "prevención" 
asked whether the structural and conduit tubing re ferred to in the answer to question 6 of the 
application format were subject to the investigati on and requested Hylsa, if they were not, to submit 
an estimate of the amount of the total imports under the two tariff lines accounted for by the non-
investigated product.
101  Hylsa's responses (as contained in th e public version of its reply to the 
"prevención" and as indicated in Me xico's answers to Panel questioning102) appear to confirm that the 
structural and conduit tubing were not covered by the investigation, but also that Hylsa had no basis to 
estimate the amounts of these non-covered products, as follows:   
"Both lines cover imports of black and ga lvanized conduction pipe and tubing and 
black and galvanized structural pipe and tubing, in addition to conduit tubing.  The 
tariff line description is very broad, and bot h black structural pipe and tubing and 
                                                      
99 Exhibit GTM-1, Sección I.A, question 6. 
 
100 Ibid. 
 
101 Exhibit GTM-3, questions 3 and 4. 
 
102 Exhibit GTM-3, answer to question 4.  Mexico's response to Panel question 9(d) provides the text 
that was omitted as confidential information from the public version of Hylsa's response to the "prevención" 
contained in Exhibit GTM-3. WT/DS331/R 
Page 25 
 
 
  black conduction pipe and tubing enter under the same line, i.e., 7306.30.99.  
Galvanized conduction pipe and tubing and galvanized structural pipe and tubing 
enter under the same line, i.e., 7306.30.01.  This greatly restricts the ability to 
estimate imports of the aforementioned pipes and tubes.  The use made of the pipes and tubes cannot be determined on the basis of Hylsa-DAT’s internal data.  Annex 3.  
No relevant information was obtained fo r a formal analysis, because even though 
some of the importers were known, the tota l amount of the imports was not.  Annex 3 
contains no information." 
The initiation notice confirms that Hylsa was unabl e to provide any information in response to 
Economía's request for further precision as to th e respective amounts of investigated and non-
investigated products imported under the two tariff lines:   "In fact, the Ministry noted that in order to 
describe the trend in the imports under investigatio n in the period July-December 2000 in relation to 
the previous comparable period, the applicant c onsidered the total amount of imports entering the 
domestic market under the tariff lines in question."
103  Thus, it is clear to us (and Mexico does not 
contest) that Hylsa provided no information as to this product breakout. 
 
7.48 In response to Panel questioning as to any step s other than the "prevención" (which, as just 
discussed, yielded no clarification) that were ta ken by Economía to identify the volume and value of 
the investigated products contained within the data  for the two tariff lines, Mexico indicated that 
Economía had used the official SICMEX statistics firs t to verify the totals for the two tariff lines as 
reflected in the application and then to conduct its analysis of the trends in imports for purposes of 
initiation.  In particular, Mexico stated that: 
"The investigating authority first of all analysed the import volume data provided by 
the applicant and noted that the amounts corresponded to the imports recorded for 
tariff lines 7306.30.01 and 7306.30.99"104; 
and further that:  
"Thus, the investigating authority used its own statistics drawn from official import 
sources to carry out the assessment under Article 3.1 and 3.2 of the Anti-Dumping 
Agreement  and other provisions".105 
7.49 Mexico also underlined to the Panel, however, that these official data were no more detailed 
as to product breakouts than the tariff-line level (i.e., than the level of detail in the application).  In 
particular, Mexico stated: 
"It is important to note, moreover, that the investigating authority has access to 
official import statistics available from th e Ministry of the Economy’s Mexican Trade 
Information System (SIC-M), which is at th e eight-digit level (i.e., two more than the 
Harmonized System), it being understood that, likewise, there are no official import data at the specific "product code" level (so th at data at the tariff line level provide the 
narrowest range that includes the investigated product)."
106 
                                                      
103 Exhibit GTM-4, para. 92. 
 
104 Mexico response to question 9(d) from the Panel. 
 
105 Ibid. 
 
106 Mexico response to questions 9(d) and (e) from the Panel. 
 WT/DS331/R 
Page 26  
 
 7.50 In response to a question from the Panel as to wh ether in respect of the import data, Economía 
had limited itself to the above-described verification that  the data in the application were the same as 
those published by SICMEX for the two tariff lines, a lthough Mexico said that this was not the case, it 
pointed to no other concrete steps taken by  Economía.  Mexico nevertheless argued that: 
"[...] the authority’s assessment of the imports  is to be viewed as a harmonious whole 
made up of a number of interconnected elem ents which together provide a reasonable 
basis for the determination to initiate the i nvestigation.  In particular, it should be 
noted that the evidence adduced by the app licant (in the request for initiation and in 
its responses to the "prevención") permitte d Economía to link the statistical data from 
the tariff lines to the trends in the impor ts under investigation (including volumes, 
values, or tendencies) in a reasonable manne r.  According to the IA, such evidence 
must be assessed on the basis of logic, knowledge and acquired experience".
107 
7.51 The Initiation Determination confirms that fo r purposes of initiation, for information on the 
volume and value of imports of both the allegedly dumped imports and total im ports of the relevant 
products, Economía relied upon the official SICMEX st atistics at the tariff line level, unadjusted in 
any way to exclude the non-investigated products al so reported under those tariff lines.  In particular, 
the notice of initiation states: 
"The indications received from the applican t did not provide the Ministry with the 
information enabling it to estimate, for the period of investigation and the two preceding similar periods, the share of imports  of black and galvanized standard pipes 
and tubes in the total volume of imports under tariff lines 7306.30.01 and 7306.30.99 
of the Schedule of the General Import Duty Law."
108 
7.52 The disussion in the notice of initiation in regard  to the volume, trends and market share of 
the allegedly dumped imports was explicitly based on the totals reported for the two tariff lines, as 
follows: 109  
"... in order to assess whether the period of  investigation saw an increase in total 
imports and in imports from the Republic  of Guatemala in relation to domestic 
consumption and production, the Ministry es timated the size of the standard pipe and 
tube market on the basis of apparent dom estic consumption, defined as the sum of 
domestic production and total imports less to tal definitive exports.  Total imports 
were obtained as specified under point 98 of this Resolution.  As regards domestic 
output and total exports, the Ministry examined the figures provided by the applicant, 
obtained from the National Chamber of the Iron and Steel Industry. 
In this connection, the Ministry noted th at, during the period of investigation, the 
share in Mexico’s standard pipe and tube market of total imports under tariff lines 
7306.30.01 and 7306.30.99 of the Schedule of  the General Import Duty Law grew by 
10 percentage points in relation to the previous comparable period, rising from 28 to 
38 per cent.  As to imports from the Republic  of Guatemala, the Ministry noted that, 
in the period July-December 2000, their shar e in domestic consumption increased by 
                                                      
107 Mexico response to question 9(e) from the Panel. 
 
108  Guatemala – Exhibit GTM-4, para. 97. 
 
109 Initiation Resolution, Exhibit GTM-4, paras. 103-104.  The data in the application pertained to the 
July-December periods of 1999 and 2000. 
 WT/DS331/R 
Page 27 
 
 
  2 percentage points in relation to the previous comparable period, from 5 to 
7 per cent.  In relation to domestic production, imports from the country under 
investigation accounted for 7 per cent in  the period July-December 1999, reaching 
11 per cent during the period of investigation." 
7.53 While the notice of initiation makes thus clear Economía's recognition that it had no 
information as to the proportion of the total impor ts under the two tariff lines that were accounted for 
by the products subject to the application, the notice also indicates that Economía intended to take 
further steps during the investigation to estimate this info rmation, as indicated in the following 
passage:   
"As the next step in the procedure, the Minist ry will assemble the relevant information for an 
estimation of the volume of black and galvanized  standard pipes and tubes that entered the 
domestic market under tariff lines 7306.30.01 and 7306.30.99 ... during the period of investigation and the two previous comparable periods."
110 
7.54 Recalling our view of the nature of the obliga tion imposed by Article 5.3, we see the issue 
before us as whether an unbiased and objective investigating authority could properly have 
determined that the evidence on import volumes of the allegedly dumped imports that was before 
Economía was sufficient in the sense of Article 5.3 for purposes of initiation of the investigation.   
7.55 The WTO obligations of a Member's anti-dumping investigating authority are set out in the 
Anti-Dumping Agreement.  We agree with Mexico that a Memb er's investigating authority has a 
certain degree of discretion to in itiate and conduct an anti-dumping inves tigation, and is not subject to 
obligations that are not contained in the Agreement.   That said, and as discussed at length above, the 
Agreement (Article 5.3) requires an investigating authority, before taking a decision to initiate an 
investigation, to satisfy itself as to the sufficiency of the evidence (in this case pertaining to injury) 
before it.   
7.56 In this regard, the provisions of Article 3 pr ovide pertinent guidance.  In particular, the 
concept of the "dumped imports" is a centrally importa nt and integral element of the entire analysis of 
injury and causation as provided for in Article 3.  Article 3.1, an overarching provision pertaining to 
injury determinations as a whole, requires positiv e evidence and an objective examination of both 
(a) the volume of the dumped imports  and their effect on prices in the domestic market for like 
products, and (b) the consequent impact of the dumped imports  on domestic producers of the like  
products.  Article 3.2 c oncerns the determination of the volume of dumped imports , and their effect on 
prices, and Articles 3.4 and 3.5 concern the impact of dumped imports  on the domestic industry 
producing the like product, and causality between dumped imports  and injury.  Articles 3.6, 3.7 and 
3.8 also contain numerous references to dumped imports and their impact.  While, again, we do not 
mean to suggest that an investigating authority must have before it, at the time it initiates an 
investigation, injury-related evid ence of the quantity and quality that would be necessary to support a 
preliminary or final determination of injury, it is clear  that the authority must have before it the same 
type of evidence of injury as defined in Article 3, including as to the volume of allegedly dumped 
imports, sufficient to justify the initiation of an investigation. 
7.57 In this regard, the question before us is whether Economía complied with the obligations 
under Article 5.3 in assessing the sufficiency of th e evidence pertaining to injury by basing its 
assessment of the volume of the allegedly dumpe d imports on the published data for total import 
volumes reported for two entire tariff lines, while be ing aware that those tariff lines also included an 
undetermined quantity of other products not the subj ect of the application.  In other words, did 
Economía, in accepting this published aggregate in formation as a proxy for the volume of the 
                                                      
110 Exhibit GTM-4, para. 99.   WT/DS331/R 
Page 28  
 
 allegedly dumped imports, fail to comply with the requirement of Article 5.3 in respect of the 
sufficiency of this evidence fo r the purpose of initiation?   
7.58 We take note of Mexico's argument that "the authority’s assessment of the imports is to be 
viewed as a harmonious whole made up of a numbe r of interconnected elements which together 
provide a reasonable basis for the determ ination to initiate the investigation."
111  We are aware that 
Economía had other evidence pertaining to the product under investigation before it, including 
information pertaining to the "'Description of the su bject product' (technical or trade names by which 
the product is known, physical and technical char acteristics, composition, production process, uses 
and users, including, moreover, manufacturing sta ndards, diagrams of the manufacturing process, 
quality certification for both the Guatemalan a nd the domestically manufactured product, etc."112  
However, in respect of the volume of dumped imports, we do not see the relevance of this other 
information.  Furthermore, it is not disputed that , for the purposes of initiation, having been informed 
by the applicant that it did not have any way to more precisely estimate th e volume of the covered 
products within the two tariff lines, Economía relied ex clusively upon statistics at the tariff line level, 
without making any estimation of the proportion  thereof accounted for by the product under 
investigation.  In other words, Economía recognized that it did not know, at the time it took the 
decision to initiate, anything about the percentage  of the tariff line totals accounted for by the 
investigated products.  For this r eason, Economía also had no basis on wh ich to consider the trends in 
the total volume of imports under those tariff lines as  in any way representative of the trends in the 
volume of the allegedly dumped imports .  In particular, while the trends in total imports might well be 
representative of the trends in the subject imports if  the latter accounted for a large percentage of the 
former, this would not necessarily be the case where the subject imports were only a small percentage 
of the total.   
7.59 In short, we disagree with Mexico that the information provided by the applicant may have 
permitted Economía to link the statistical data from en tire tariff lines to the trends of investigated 
imports in a reasonable manner on the basis of logi c, knowledge and acquired experience, as we see 
nothing in the record that was before Economía  at the time of initiation establishing or addressing 
such a link.113  We do not consider that it was suffici ent for Economía not to find some reasonable 
basis to estimate the proportion of total imports ac counted for by the product under investigation at 
the initiation stage.  For example, we note that Economía obtained import "ped imentos" relating to a 
certain number of import transactions at later stages of the process.114  This confirms to us that there 
would have been at least one way that Economía mi ght have sought to corroborate the import volume 
statistics as they related to the product under investig ation.  We disagree with Mexico's argument that 
requiring, at the initiation stage, some corroboration of the import volume at the tariff line level that 
related to the product under inv estigation is tantamount to impos ing a requirement that initiation 
evidence of the same quality and quantity as eviden ce required to sustain a preliminary or final 
determination.  Again, it is the type of evidence of injury which is our focus here.115 
7.60 For these reasons, in the circumstances of th is case, we consider that an unbiased and 
objective investigating authority, in relying on the ev idence in question, i.e., the official statistics of 
                                                      
111 Mexico's response to question 9(e) from the Panel. 
 
112 See Volume 1, Section I.A of th e application in Exhibit GTM-1. 
 
113 Mexico response to question 9 (e) from the Panel, quoted at paragraph 7.50, supra . 
 
114 See, for example, Preliminary Determination,  Exhibit GTM-10, paras. 120-123;  and Final 
Determination, Exhibit GTM-23, para. 169. 
 
115 See para. 7.56 supra. 
 WT/DS331/R 
Page 29 
 
 
  total imports under the two tariff lines concerned,  as evidence of the volume of dumped imports – 
without cross-checking (even in an approximate manner) the proportion of those tariff line import data that corresponded to the product under investig ation – could not properly have determined that 
there was sufficient evidence of in jury to justify the initiation of an anti-dumping investigation in 
relation to the product under investigation.  The fact that, during the course of the investigation, it was 
ultimately confirmed that the investigated pr oduct (however this was eventually defined
116) appeared 
to account for a substantial portion of the imports under the two tariff lines is not relevant to our 
examination under Article 5.3.117  What is relevant is what facts were known to the investigating 
authority at the time that it initiated the investig ation.  We see no basis on the record for Economía to 
have concluded that the total volumes at the tari ff line level constituted a reasonable proxy for the 
volume of the allegedly dumped products during the pe riod of investigation.  We therefore find that 
Economía did not act consistently with Mexico's obligations under Article 5.3 in performing its 
assessment of the sufficiency of  the evidence of injury.   
7.61 As there was no proper determination that there was sufficient evidence of dumping or injury 
to justify proceeding with the case under Article 5.3, the application should have been rejected and the 
investigation should not have been initiated by the term s of Article 5.8.  In light of our findings of 
violation of Articles 5.3 and 5.8, we do not cons ider that it is necessary for us also to examine 
Guatemala's claim under Article 5.2.  
C. FACTS RELATING TO DEFINITION OF  PRODUCT UNDER INVESTIGATION /LIKE PRODUCT  
7.62 Guatemala raises a number of claims that are based on its factual allegation that at two points 
during the investigation, Ec onomía expanded the definition and scope of the product under 
investigation.  Briefly, Guatemala claims that in  spite of changing the scope of the products covered 
by the investigation – and thus, eventually, t hose covered by the anti-dumping measure – Economía 
never investigated the added products in respec t of either dumping or injury.  Concerning the 
dumping finding in particular, Guatemala alleges that although Tubac was not requested to provide 
any data concerning the added products, the fact th at it did not do so was one of Economía’s main 
reasons for rejecting Tubac’s data and resorting to facts available in calculating the definitive margins 
of dumping.  Similarly, in respect of the injury and causation determinations, Guatemala alleges that 
Economía did not gather, collect nor analyse data  pertaining to the expa nded product definition. 
7.63 Before turning to the specifics of Guatemala's claims concerning the alleged changes to the 
scope of the investigated products, we start by cons idering the basic factual issue, i.e., whether the 
facts of record, as presented to us in this dispute,  indicate that Economía modified the scope of the 
investigation as argued by Guatemala.   
7.64 In its first written submission, Mexico appeared  to admit that the two changes alleged by 
Guatemala did take place.  Concerning the first alleged change, the expa nsion of the range of 
diameters of pipe covered by the investigation from 1/2"-4" to 1/2"-6", Mexico stated in its first 
submission that:  " (d) [o]nly the diameter of  the pipes and tubes investigated was modified "118 and 
that "a 2-inch increase  in diameter does not signify that the Ministry made a substantial alteration in 
                                                      
116 We refer to our discussion of the changes in product definition in the course of the investigation , 
infra .  
 
117 For example, para. 165 of the Final Determination indicated that in the periods 
July-December-1998, 1999 an d 2000, the investigated product acc ounted for 79, 66 and 64 per cent, 
respectively, of tariff-line import volumes.  
 
118 First written submission of Mexico at  paragraph 91(d) (emphasis added). 
 WT/DS331/R 
Page 30  
 
 the description of the product under investigation"
119, and that "the Guatemalan exporter had every 
opportunity to raise any objection it saw fit to the change  in question".120  Concerning the second 
alleged change, the addition of certain structural tubing to the scope of the investigated product, 
Mexico stated in its first submission that: "the  scope of the product under investigation was not 
generically expanded  to include "structural" pipes and tubes, but merely  pipes and tubes that were 
technically and commercially interchangeable w ith those possessing the following characteristics 
…".121  Mexico made similar statements in its first oral statement.122  Furthermore, in response to 
questions from the Panel following the first substa ntive meeting of the Panel, Mexico acknowledged 
that these modifications had been made (although it referred to them as "clarificatory adjustments" (precisiones ), "clarifications" ( clarificaciones ), or "ajustments" ( ajustes )).
123  Mexico defended these 
modifications on the grounds that Economía, not being an expert in pipe and tube products, found it 
appropriate to make these changes or clarifications  to the product scope in the light of information 
that it progressively gathered over the cour se of the investigation as to the commercial 
interchangeability of the products. However, Mexico al so made such statements as: "they are one and 
the same [product]"124;  "it is the same product"125;  and "it is the same merchandise".126  Furthermore, 
during the second substantive meeting Mexico in an oral comment to the Panel denied that Economía 
had changed the definition of the investigated product.127   
7.65 Because of these differing statements by Mexico as to whether in fact Economía had changed 
the scope of the investigated pr oduct (1) by increasing the maximum diameter covered from 4" to 6", 
and (2) by adding certain structural tubing to the pro duct definition, we cannot c onclude that this is an 
uncontested fact in this dispute.  Accordingly, a nd because of the central importance of this factual 
issue to many of Guatemala's claims, we now consider  in detail the record evidence that pertains to 
this point.   
1. The application (GTM-1) 
7.66 The application by Hylsa described the produc t subject to the application as black and 
galvanized "standard pipe and tube" produced unde r various technical standards, the most important 
being ASTM A-53 and BS-1387.  The application st ated that these products, which were known in 
                                                      
119 Ibid. at paragraph 91(e) (emphasis added). 
 
120 Ibid. at paragraph 91(f) (emphasis added). 
 
121 Ibid. at paragraph 104 (emphasis added). 
 
122 First oral statement of Mexico at paras. 21(d) and 28. 
 
123 Mexico's responses to questions 89 and 90 from the Panel. 
 
124 First written submission, para 105: "In this connection, Guatemala seeks to imply that these are two 
different products, when in fact they are one and the same  [...]." (emphasis added)   
 
125 First oral communication, para 33: "[...] since for the purposes of the investigation, it was the same 
product ." (emphasis added) 
 
126 Mexico's response to question 89 from the Panel: "[ ...] the information available indicates that it is 
the same merchandise  [...]." (emphasis added) 
 
127 Written transcript of second substantive meeting.  Mexico, commenting on Guatemala's claims 
concerning the alleged changes in the definition of the i nvestigated product, stated:  "We take sharp issue with 
Guatemala that changes were made in this regard. ... The product under investigation remains the same, i.e., 
black or galvanized standard pipes and tubes, without going into the details adduced to make a case for two 
differentiated products." WT/DS331/R 
Page 31 
 
 
  Mexico as "standard pi pe" or "conduction pipe" , were principally used to carry liquids and gases, but 
also could be used to produce pipe fittings and similar products, and for certain structural purposes 
(e.g., fencing).  The application indicated that  in Guatemala these products are known as " cañería " 
(conduction), or " tubería liviana " (light), " tubería mediana " (medium), and " tubería pesada " (heavy) 
or "gruesa " (thick)" .  The application emphasized that the imported Guatemalan product and the 
Mexican "like product" both conformed to the A-53 standard , making the point that the imported and 
like products were "identical" .  With further reference to physi cal characteristics, the application 
stated that although the size range for standard pipe went up to 26" diameter, the product imported 
from Guatemala ranged from ½" to 4" , and that the most common schedules [wall thicknesses] were 
30, 40 and 80, with schedule 40 predominating .  In terms of production process, the application 
indicated that the product was produced via elect ric resistance welding from hot-rolled steel coils .  As 
for tariff classification, the application indicated  that the subject products were imported under two 
categories128 that included but were not limited to tho se products, as in addition to the investigated 
products, structural tubing and conduit also were included.  The application asserted that the pipe 
from Guatemala was identical to th at produced by the Mexican domestic producers, and that both had 
the same "quality, standards, specifications and uses".129  
2. The "prevención" (GTM-3) 
7.67 In its answers to the pre-initiation questioning by Economía (the "prevención"), Hylsa again 
stressed that the product at issue corresponded to the ASTM A-53 standard:  "The specifications are 
based on ASTM A-53, the most common standard used for this type of pipe and tubing".130  I n  
support, Hylsa provided copies of analyses of investigated products produced by Tubac and by Hylsa, 
all of which were identified as corresponding to the ASTM A-53 specification.131  In a footnote on the 
page containing the information for Hylsa's product,  it is stated that ASTM A-53 was not the only 
applicable standard, as BS-1387 also was relevant , and also was produced by Tubac, although it was 
consumed less in Mexico than A-53 pipe.132  In a footnote to the page containing the information for 
Tubac's product, it is stated that "hot-rolled sheets are the common input for these pipes".133  T h e  
description of the production process for the investigated product134 also indicated that the process 
began with the unrolling of a coil of hot-r olled steel sheet ("principal input").   
7.68 Question 3 of the "prevención" noted that in the application, Hylsa had indicated that under 
the two tariff categories identified, "in addition to th e product subject to the investigation, structural 
tubing and conduit tubing" also entered Mexico.  Eco nomía asked Hylsa to clarify whether structural 
and conduit tubing were or were not covered by the investigation.  Hylsa's response was submitted as 
confidential.135  Question 4 of the "prevención" asked Hyl sa, in the event the response to question 3 
                                                      
128 As discussed, supra , the two tariff categories were 7306.30.01 and 7306.30.99 (galvanized and 
"other" welded carbon steel pipe and tube, respectively). 
 
129 Exhibit GTM-1, Volume 2, p. 5.  The annexes to Volume II of the application contain (largely 
confidential) injury information submitted by the applicant. 
 
130 Exhibit GTM-3, answer to Question 1. 
 
131 Exhibit GTM-3, Annex 1. 
 
132 Ibid. 
 
133 Ibid. 
 
134 Exhibit GTM-3, Annex 10. 
 
135 Exhibit GTM-3, answer to question 3. WT/DS331/R 
Page 32  
 
 was negative, to estimate the amount of the tota l reported imports represented by the non-subject 
products.  Hylsa provided a narrative response confirmi ng that structural and conduit tubing also were 
classified within the two tariff categories, but part of the narrative was confidential.
136  Hylsa 
indicated that it was not able to provide the re quested estimates because it did not know the total 
amounts of the imports, but only those of certain importers.137   
7.69 In response to question 16 of the "prevenci ón" concerning diameters and wall thicknesses of 
the product under investigation, Hylsa provided a table of diameters and wall thicknesses which it 
said were those of the standard pipes imported from Guatemala.  The source of this information was 
not indicated. 
7.70 In response to question 23 of the "prevenc ión", which requested information on the 
conversion factors used to convert the prices in th e price quote and the invoice, from a per-piece to a 
per kilogram basis, Hylsa provided a table id entified as coming from a specification for products 
produced by Hylsa, which according to Hylsa also applied to the Guatemalan products, as both were 
produced according to strict standards.  Hylsa did not otherwise identify the specification in question, 
and the schedule of dimensions does not correspond to that in the ASTM A-53 specification.  In 
Tubac's questionnaire response, a table containing th e same dimensions, identified as corresponding 
to those in the BS-1387 specification was provided.  In answer to a question from the Panel, Mexico confirmed that the dimensions referred to in the table provided by Hylsa were those for BS-1387 
pipe.
138   
3. The notice of initiation (GTM-4) 
7.71 The description of the investigated product in the notice of initiation was essentially the same 
as that in the application.  The notice stated that the product imported from Guatemala was a 
"commodity" product, produced from hot-rolled steel coils , known by the generic name of standard 
pipe, and by the commercial and/or technical na mes of galvanized and black standard pipe 
(mentioning as well the names by which the product was known in Guatemala139).  Concerning the 
physical characteristics and chemical composition of st andard pipe, the notice stated that the applicant 
had indicated that these were as set forth in the ASTM A-53 standard , the "principal standard" for 
these products, and that that standard also establis hed that the product was produced to particular 
"schedules" denoting wall thickness, resistance a nd durability, among which schedules 30, 40 and 80 
were the most common, especially schedule 40  (the most widely demanded).  The notice also recited 
long excerpts from the ASTM A-53 standard, and indicat ed that although the technical analyses of the 
Guatemalan and Mexican products showed some phy sical differences, all of the reported values fell 
within the ranges specified in ASTM A-53.  The no tice indicated that, as stat ed in the application, 
although standard pipes could range from 3/8" to  26" in diameter, those imported from Guatemala 
ranged from ½" to 4" in diameter .   
7.72 In terms of the definition of the "like product", the notice of initiation states:   
                                                      
136 As indicated above, in answer to  questioning by the Panel Mexico provided the text that had been 
omitted as confidential from the public version of Hylsa's reply to this question.  See paragraph 7.47, supra . 
 
137 Questions 5-15 requested clarifications of the in jury information provided in the application.  
 
138 Response to question 174 of the Panel: "The table indeed conforms to the BS-1387 standard."  
Economía also requested and receive d clarifications relating to the in jury information submitted with the 
application.  See Exhibit GTM-3, questions 14 and 15.  
 
139 Cañería , tubería liviana , mediana , and tubería pesada  or gruesa . 
 WT/DS331/R 
Page 33 
 
 
  "... relying upon the information supplied by  the applicant regarding the description, 
physical characteristics, chemical composition, uses, production process and inputs of domestically manufactured standard pipes and tubes and standard pipes and tubes 
imported from the Republic of Guatemala, as referred to in points 5 to 29 of this Resolution, the Ministry made a preliminary determination that the two products were 
similar in terms of their physical characte ristics and chemistry and were destined for 
the same end uses, which enabled them to fulfil the same functions and made them 
commercially interchangeable, and were hence like products."
140   
7.73 In terms of the "alleged injury" component of  its initiation analysis, Economía relied upon the 
domestic industry information supplied by the applicant,  while concluding that, in respect of financial 
indicators, "the 'Hylsa-DAT' statement of results to  which the applicant refers does indeed correspond 
to operating results for the like product , and it therefore decided that at the current stage in the 
investigation, the assessment would be confined  to results concerning the like product and the 
applicant as a whole." (emphasis added)141   
4. Submission of Tubac accompanying response to exporters' questionnaire / questionnaire 
response (GTM-5) 
7.74 In conjunction with its reply to the exporters'  questionnaire, Tubac made a written submission 
questioning various points related to the investig ation, including the definition of the product under 
investigation.  Tubac argued in this submission th at Economía and the applicant had not adequately 
defined the coverage of the investigated product .  According to Tubac, the description of the pipes in 
question was confusing, and did not permit Tubac to  know the scope or covera ge of the product under 
investigation.  Tubac stated that in the technical  and commercial literature there was no reference to 
any product called "standard pipe", even in the AS TM A-53 standard cited by the applicant.  Tubac 
stated that Hylsa's own website referred to thr ee types of "heavy walled pipe":  conduction, conduit, 
and mechanical tubing.  Tubac indicated that it was unclear whether all of these three types were 
covered by the application, and that even the IA ha d recognized the lack of cl arity, asking Hylsa in the 
"prevención" whether structural and conduit tubing were included.  Tubac noted, and objected to the 
fact, that Hylsa had qualified its reply to that questi on as confidential, but also noted a statement in the 
application that the published import statistics covere d, "in addition to black and galvanized standard 
pipes, products known as galvanized structural tubing and conduit tubing".  Tubac went on to conclude that, without prejudice to its position, in its questionnaire response, it reasonably assumed 
that the investigated product was only galvanized and black conduction pipe, as defined by Hylsa on 
its website .  The excerpt from Hylsa's website, Annex 2 to the submission, listed a variety of 
diameters ranging from ½" to 6", in schedules 40 and 80 (and a few also with thinner-walled dimensions whose schedule was identified as "X").  Th e "typical applications" were identified as pipe 
for conduction of water, air, gas and special fluids.   
7.75 In its response to the exporters' questionnaire,  Tubac listed in response to question 2.13, on 
product codes, various sizes of pipe referred to either as " mediana " or " liviana ", or as schedule 40 or 
80.  Most of the listed codes were schedule 40.  In its answer 2.17 (installed capacity) Tubac stated 
that the data it provided were limited to informa tion on conduction pipe.  In its answer to question 
2.18, Tubac stated that the data it submitted on th e other economic indicators also were only those 
relating to conduction pipe, both the ASTM and the BS  norms.  Tubac furnished, in Annex 10 to its 
response, a document indicating the technical di fferences between ASTM A-53 and BS-1387.  It 
                                                     
 
140 Exhibit GTM-4, para. 69. 
 
141 Exhibit GTM-4, para. 134.  See also our factual summary of injury data, infra , paras. 7.292 ff.  We 
recall that we have already addressed above Economía's treatment of the volume of dumped imports at the 
initiation stage.  WT/DS331/R 
Page 34  
 
 further stated that the IA should be aware that T ubac produced other products than these in the same 
plants.   
5. Hylsa's reply to Tubac's submission and exporters' questionnaire response (GTM-27) 
7.76 In its reply to Tubac's submission (Exhibit GTM-5), Hylsa challenged Tubac's assertion that 
the term "standard pipe" did not exist, quoting from various references that used that term.  (We note 
that none of the annexed documents contained a definition of the term, however.)  Hylsa also 
challenged Tubac's statement that the product definition was not clear.  Hylsa stated that it was the case "as the exporter concludes, that the investigated  product is defined as all welded standard pipe, 
galvanized or black, for conduction , it needing to be stated that this  definition ... naturally applies to 
welded standard pipe, galvanized or black, of th e dimensions specified in Annex 2, which have 
identical physical characteristics, chemistry and finish, and similar resistance, and it being clarified 
that so-called conduit  tubing is not part of the investigated product" because it was not sufficiently 
similar for purposes of the relevant provisions of Mexican law.  In Annex 2, Hylsa stated that 
structural tubing ("not included in the investig ation) coming from Guatemala corresponded to the 
"ASTM A-513" standard, and was produced from cold-rolle d steel, and that structural tubing could be 
distinguished from conduction pipe on the basis of its  wall thickness, as structural was lighter-walled.  
Hylsa further stated that ASTM A-53 did not exclusively cover conduction pipe, and that what was not covered by Hylsa’s application was tubing with thin walls and thus structural tubing, with wall 
thickness less than 14 gauge, i.e. between 15 and 22 gauge.  Hylsa attached a table which it indicated 
referred to structural tubing from Guatemala not covered by the investigation.  Hylsa presented a 
second table in Annex 2 of "Dimensions of the denounced tubing", ranging from 1/2" to 6" in 
diameter in a range of wall thicknesses denominated in inches and millimetres.  In Annex 2, Hylsa 
described the difference between th e gauge (or sheet thickness) and the pipe schedule, the latter being 
a relationship between the thickness and the diameter  of the pipe, or between the resistance to the 
material being conducted and the resi stance to force of the steel.  Hy lsa concluded with the statement 
that the most common pipe schedules were 20, 30, 40 and 80, and that pipe schedules generally are 
mentioned in referring to standard pipe. 
6. Information from the domestic industry prior to the Preliminary Determination 
7.77 In response to Economía's request of 10 December 2001
142, Hylsa submitted143 a conciliation 
of financial data for its Tubular Products Division, Hylsa-DAT, for costs, sales and profits for the "like product" to the data for Hylsa S.A. that had been submitted previously in response to Economía's 
initial (pre-initiation) "prevenci ón".  Economía requested information, on 17 December 2001, from 
Tuberías Procarsa ("Procarsa"), Tubería Nacional ("TN") and Compañía Mexicana de Perfiles y 
Tubos ("CMPT") and the National Chamber of th e Iron and Steel Industry ("CANACERO").  In 
addition to requesting economic injury data for the years 1998, 1999 and 2000
144, and information on 
the methodology used to calculate installed capacity  for production of standard black and galvanized 
tubing, these requests sought import information (includi ng invoice and "pedimentos").  At that point, 
the imported product from Guatemala was identified by Economía as " tubería estándar negra y 
galvanizada " (standard pipes and tubes, black and galvan ized) classified by tariff line.  Tubería 
Nacional, Compañía Mexicana de Perfiles y Tubos and CANACERO submitted responses.145   
                                                      
142 Exhibit GTM-8. 
 
143 Exhibit GTM-9. 
 
144 See also our factual summary of aspect s of injury data taken into account, infra, para. 7.301. 
 
145 Exhibit GTM-10, para. 106.  WT/DS331/R 
Page 35 
 
 
  7. Preliminary Determination (GTM-10) 
7.78 The Preliminary Determination stated at para graph 5 that "the product" consisted of 
"commodity" products, produced from hot-rolled coils , in diameters ranging from ½" to 6" .  At 
paragraph 6 the determination stated that the pr oduct was known in Mexico as "standard pipe" or 
"conduction pipe ", and was known in Guatemala by the names of " cañería ", "tubería ligera o 
liviana ", "tubería mediana " and " tubería pesada o gruesa ".  At paragraph 7, the determination 
indicated that Tubac had argued that the description of the investigated product was too imprecise for Tubac to know the scope of the investigation, as in  the literature and on Hylsa’s own web page there 
was no reference to "standard pipe".  At paragra ph 8, the determination indicated that Economía had 
rejected this argument because of the references in  the various publications submitted by Hylsa to 
"standard pipe", and because Tubac had indicat ed that "conduction pipe" was among the tubing 
produced by Hylsa, and this was one of the names by which the investigated product was known in Mexico.   
7.79 Concerning the physical characteristics of the subject product, the determination stated at 
paragraph 13 that Hylsa had indicated that the ph ysical characteristics and chemistry of "standard 
pipe" were those contained in ASTM A-53 (the most  common) specification, and at paragraph 14 that 
the product also could be produced under the BS-1387, DIN 2440, DIN 2441 and JIS G 3454 specifications.  At paragraph 15, the determination indicated that Hylsa had stated that "conduction 
pipe" (imported from Guatemala and produced in Mexi co) was available in diameters between ½" and 
6" inches, and with wall thicknesses between 1.60 and 7.11 mm, "in different schedules, among which 30, 40, and 80, especially 40, were the most common." 
7.80 At paragraph 17, the Determination indicated that Economía had observed that the imported 
product and the Mexican product were both pr oduced under ASTM A-53 and also, for the 
Guatemalan product, BS-1387, that the chemical com position fell within the ranges specified in A-53, 
and that both products were availabl e in the diameter range of ½" to 6", especially in schedules 40 and 
80.   
7.81 At paragraph 19, the Determination indicated th at standard pipe was produced in two major 
steps, the first starting with the welding, from hot -rolled steel, of the tubular shape, and cutting to 
length, and the second consisting of the finishing (p ainting, galvanizing).  (At paragraph 18, the 
Determination recounted Hylsa’s statements th at the Guatemalan and Mexican products were 
produced via similar processes: electric resistance  welding, using as the principal inputs hot-rolled 
steel coils, electricity, natural gas, zinc, water, etc.)  As for functions and uses of the product, 
paragraph 20 of the Determination stated that the product had a broad range of uses, principally 
conduction of water, air, non-corrosive liquids, cabl es, etc., with galvanized used where protection 
from the environment was important.  In addition, th e Determination stated that the product could be 
used for production of pipe fittings  and other products, and for structural purposes.  At paragraph 117, 
the Determination indicated that Hylsa's application stated that structural and conduit tubing "... are 
non-subject products". 
7.82 The Preliminary Determination contains Economía's definition – at that point in the 
investigation – of the "like product" produced by the domestic industry.  In particular, Economía 
determined that the investigated product – black  or galvanized standard pipe, as described in 
paragraphs 5-23 of the Determin ation – "ranging from 1/2" to 6" in diameter ... is like the 
domestically manufactured product ... inter alia  because the two possess the same physical and 
chemical characteristics, enabling them to fulfil the same functions and making them commercially 
interchangeable".
146  The Preliminary Determination indicates that "the information coming from 
                                                      
146 Exhibit GTM-10, para. 84. 
 WT/DS331/R 
Page 36  
 
 CMPT differed from the figures supplied by CANACERO;  a possible explanation is that non-subject 
products were included, so the matter will be further investigated in the next stage of the procedure"; 
describes Economía's injury analysis of the domestic industry producing the "like product"
147 and its 
analysis of the impact of the dum ped imports on this  domestic industry.148   
8. Technical information meeting with Tubac (GTM-11(A)) 
7.83 Following the Preliminary Determination, Ec onomía held a technical meeting with 
representatives of Tubac to explain the calculation me thodology used in that Determination.  At the 
meeting, one of Tubac's representatives stated that the description of the inv estigated product in the 
Determination was not correct, and also was conf used, which meant that the provisional measures 
were being applied to all of the products that we re entering Mexico under the two tariff categories.  
She requested that the investigated product be clar ified – as a definition of "standard pipe" did not 
exist – so that in the Final Determination the pr oducts not subject to the duties would be clearly 
specified.   
7.84 The Economía official responded that the pr oduct imported from Guatemala and the domestic 
like product were commodity products, in diameters be tween ½" and 6", and that the generic name for 
them was standard pipe, also known as standard galvanized or standa rd black pipe.  In Mexico these 
products were identified as "standard  pipe" or "conduction pipe", a nd this was the product on which 
the analysis in the investigation was conducted, and which was subject to the provisional measures.   
9. Technical information meeting with Hylsa (GTM-11(B)) 
7.85 Economía also held a technical information meeting with representatives of Hylsa following 
the Preliminary Determination.  Among the issues ra ised by Hylsa's representa tives in respect of the 
data that Tubac had submitted were the criteria th at had been used to determine whether a given 
product of Tubac was similar or identical to th e investigated product, and whether the 32 product 
codes of Tubac that had been taken into account for the Preliminary Determination were the only 
product codes of that company pertaining to stan dard pipe.  The representatives argued that if 
commercial considerations were taken into accoun t, a larger number of product codes would be 
covered by the investigation.  In response to these points, Economía explained that Tubac had 
provided a table containing a description of all of the physical characteristics, and the official 
standards, for each of its product codes.  Economía st ated that it had analysed all of these codes, and 
that only 32 of them fell within the definition of standard pipe.149   
                                                      
147 See GTM-10, paras. 150-164 (analysis of economic injury factors); paras. 165-182 (financial injury 
factors).  See also our factual summary of aspects of Economía's analysis, infra,  paras. 7.304 and 7.305. 
 
148 For example, in terms of data on imports from Guatemala, the Preliminary Determination further 
reveals that Economía received 312 import "pedimentos" and invoices, of  which Economía estimated 74 per 
cent related to the subject product.  In respect of imports from sources other than Guatemala, the applicant had 
estimated the proportion of im ports in the respective tariff lines accounted for by the su bject product (up to 6"), 
but Economía made its own estimate.  In addition, Economía had 313 "pedimentos" and invoices from 
59 customs agents relating to standard black and galvanized tubing "en las dimensiones señaladas" (i.e. 
implying this meant the product between ½ and 6 inches).  Exhibit GTM-10, paras. 120-126.  
 
149 In its 29 April 2002 comments on the Preliminary Determination, Hylsa submitted supplementary 
information in respect of the financial injury data of Hylsa/Hylsa-DAT and asserted that the analysis of the 
product under investigation/like product had to be base d on the essential characteristics of the product, given 
that product codes were arbitrary an d not useful for a comparison of normal value and export price (p. 7). WT/DS331/R 
Page 37 
 
 
  10. Notice of verification to Tubac (GTM-13) 
7.86 Prior to the verification visit, Economía sent to Tubac a written notice that it planned such a 
visit.  From this notice it is clear that the verifi cation was to focus extensively on which of Tubac's 
products and sales were and were not covered by the scope of the investigation.  The notice specified 
the points that Economía wanted to verify, identifying  the product to be verified (standard pipe), and 
the period of investigation.150 The notice indicated that the co mpany would be allowed to present 
during the visit any information that would clar ify and support any arguments that it wished to 
advance.151  The notice also indicated that the company would be asked to explain the criteria it had 
used to determine which were identical and simila r product codes, and to demonstrate that the only 
differences between the non-identical products refe rred to in Tubac's questionnaire response were 
threading and coupling.152  It further indicated that Tubac w ould be asked for a worksheet with the 
details of the characteristics and criteria that ha d been used to exclude product codes from the 
submitted database, as well as the documenta ry and accounting evidence supporting these 
exclusions.153 
7.87 The notice indicated that Tubac's questionnaire response would be submitted to a "Prueba de 
totalidad" ("completeness test") in which the figur es for the reported transactions would be compared 
to the company's accounting records.154  In addition, the company would be asked to explain how it 
had ensured that no transactions had been erroneous ly omitted from or included in the sales listings in 
the questionnaire response.155 Economía also indicated that Tubac would be asked to reconcile to its 
accounting records its Diagram 1 (provided with th e questionnaire response ), which reported total 
sales of the company and subdivided those between i nvestigated and non investigated products and 
then subdivided the former among third markets,  domestic market and exports to Mexico.156  As part 
of this, Tubac would be asked to show th e process the company had followed to identify:157  the total 
sales of the company; the transactions to the dome stic and third market of products identical and 
similar to those exported to Mexico; the export tr ansactions to Mexico corresponding to the product 
codes for standard tubing; the sales to Mexico  corresponding to other, non-investigated, product 
codes; and the total sales of products other than sta ndard tubing.  The notice also requested Tubac to 
prepare a report showing the domestic sales, and the exports to Mexico and to other markets of the 
identical or similar product codes.  This inform ation was to be presented on a monthly basis and 
detailed by product code, as well as by country in the case of third markets.158 
                                                      
150 GTM-13, para. 6. 
 
151 GTM-13, para. 7. 
 
152 GTM-13, para. 10. 
 
153 GTM-13, para. 11. 
 
154 GTM-13, para. 17. 
 
155 Exhibit GTM-13, para. 18. 
 
156 Exhibit GTM-13, para. 19. 
 
157 Exhibit GTM-13, para. 20. 
 
158 Exhibit GTM-13, para. 23. 
 WT/DS331/R 
Page 38  
 
 11. Verification report – Tubac (GTM-15) 
7.88 The report on the on-site verification of Tub ac contains a number of passages pertaining to 
the product scope of the investigation, and the produc ts of Tubac that fell within that scope.  Under 
the heading "Validation of the sample of sales invoices", subheading "Product codes", the report 
indicates that the company explained its 9-digit product codes.
159  The report indicates that Tubac 
presented a listing of all of its product codes, in cluding investigated and non investigated products, 
and that Tubac explained that its products covere d by the investigation corresponded to the ASTM A-
53 and BS-1387 technical standards, which containe d the technical specifications of the production 
process, including chemical composition, tolerances (for weight, dimensions, etc.), testing and other 
aspects.   
7.89 Concerning the "Prueba de totalidad", the repor t states that Economía was satisfied with the 
conciliation of the figures corresponding to Diagram 1 and that the company had provided a report of domestic sales of identical or similar products to those exported to Mexico, and of sales of all other 
investigated products.   The report indicates that on the basis of these reports, Economía made further 
selective tests to corroborate the information repor ted in the database sent to Economía by product 
code and by country, and th at no differences were found.160 
7.90 Concerning Tubac's sales to the domestic market , exports to Mexico and to other countries, 
the report indicates that the company provided th e sales report containing the sales of all product 
codes for each month of 1999 and from January–June  of 2000.  The report indicates that from this 
report, the verification team selec ted the codes under investigation  and compared the total volume 
with the information in the questionnaire response.    
7.91 As an additional test and with the purpose of ve rifying that no relevant invoices (for covered 
products) had been omitted from the database, Econom ía selected 19 invoices from the report of total 
sales to corroborate that invoices that did not appear  in the data base did not involve sales of any 
investigated product codes, and that invoices involvi ng sales of any such products were duly included 
in the data base.   
12. Verification report – Hylsa (GTM-24) 
7.92 The report on the on-site verification of Hylsa refe rs to "imports of standard pipe, classified in 
tariff lines 7306.30.01 and 7306.30.99 [...] orig inating in the Republic of Guatemala …".161  I t  
indicates that certain information to be verified "concerned the production capacity and use of the installed capacity for black and galvanized standa rd conduction pipe, referred to in point 27 of the 
verification document itself ."
162  It further indicates that Hylsa explained that its information system 
did not identify products at the level of the "inv estigated product", and that the reported product codes 
had been manually identified.  At the request of  Economía, the company had conducted an exercise 
identifying the product codes selected for reporting to Economía.  As a result of this exercise, 
Economía observed that the information that had been presented by Hylsa included conduction tubing 
as well as a certain "type of structural or mechanical  tubing, since, according to the company, they are 
products with the same physical characteristics, co mposition, dimensions and uses, as was verified." 
                                                      
159 Exhibits GTM-15/MEX-12 at pages 4-5. 
 
160 Ibid. at pages 12-13. 
 
161 Exhibit GTM-24, p. 1. 
 
162 Exhibit GTM-24, p. 3.  
 WT/DS331/R 
Page 39 
 
 
  13. Other information from the domestic i ndustry between the Preliminary and Final 
Determinations 
7.93 In August 2002, Economía sent a request for furt her injury information to Tuberías Procarsa, 
Tubería Nacional and Compañía Mexicana de Perfiles y Tubos.163  This request asked for clarification 
as to whether responses to the previous request included only information pertaining to "seamed 
tubing, largely 'ERW: electric resisstant [sic] weld ed', of a diameter ranging from ½ to 6 inches and 
with a wall thickness of 0.065 to 0.280 inches, in  schedules 30, 40 and 80."  This product description 
explicitly includes tubing from 4"-6", and does not appear to exclude structural tubing.  The request asked for the information to be provided in a ta ble, which contained the same product definition 
(including up to 6").  The domestic firms were also asked to indicate how the methodology used to 
calculate installed capacity for production of standa rd black and galvanized tubing that they had 
already provided to Economía rela ted to this product, and also were asked for information on the 
gauges and schedules corresponding to these specificati ons, with a table clearly including entries for 
tubing up to 6".  Certain of the firms were also  asked for updated information on imports of the 
product as identified in that request (i.e. including 4"-6" tubing and not excluding structural 
tubing).
164,165     
14. Public hearing (GTM-19) 
7.94 At the public hearing the representative of Tub ac argued that Tubac had insisted during the 
investigation that the applicant's definition of th e investigated product was confused and prevented 
Tubac from knowing the scope and coverage of the product.  Nevertheless, Tubac had concluded that 
the covered product was "iron or steel conduction pipe in ½" to 6" diameters, black or galvanized, 
produced to the standards ASTM and BS"166, and that products excluded from the investigation were 
black and galvanized mechanical tubing, industrial tubing, structural tubing, fence tubing, and conduit 
tubing.167  The Tubac representative stated later in th e hearing that at verification Economía had 
confirmed the existence and consiste ncy of the product codes reported by Tubac, and that Tubac thus 
would abide by the analysis and judgement of  the investigating authority at verification.168  T h e  
representative of Hylsa, disputing Tubac's characteri zation of the issue, maintained that the product 
definition had always been clear, and that "Tubac itself has correctly char acterized the product as 
conduction tube, recognizably for conduction".169  The representative went on to say that independent 
of the standards or incidental characteristics, th e investigated product was "standard pipe of carbon 
steel, ½" to 6" in diameter, whether black or galv anized, with longitudinal weld, and recognizable for 
conduction, with the possibility that it might improperly be used for structural purposes".170   
                                                      
163 Exhibit GTM-18. 
 
164 The request to TN does not include such a question on imports.  The Final Determination, 
Exhibit GTM-23, paras. 139-142, reflects these compan ies' responses to these requests for information. 
 
165 CMPT indicated that it did not produce the product as defined.  Final Determination, Exhibit GTM-
23, para. 142. 
 
166 Exhibit GTM-19, p. 7. 
 
167 Exhibit GTM-19, p. 8. 
 
168 Exhibit GTM-19, p. 27. 
 
169 Exhibit GTM-19, p. 30. 
 
170 Exhibit GTM-19, pp. 30-31. WT/DS331/R 
Page 40  
 
 7.95 In response to questioning from Tubac's repr esentative as to whether "industrial tubing" 
produced from cold-rolled sheet and used for metal fu rniture was included, Hylsa's representative then 
stated that all tubing in gauges thicker than 16 fo r mainly conduction purposes in the stated diameters 
were included.  The representative al so stated that although Hylsa did not tie the product definition to 
specific standards, nevertheless the most comm on were BS-1387 and A-53, and the thicknesses under 
these standards went from 14 gauge to thicker and this was the reason for the product coverage.
171   
7.96 The Hylsa representative also said that there we re countless cases where pipe and tube with 
the same physical and chemical ch aracteristics as conduction pipe but with no hydrostatic test were 
used as conduction pipe in non-critical uses, that some other clients conducted hydrostatic tests after 
purchase172, and that products produced from both hot-rolled and cold-rolled steel were covered by the 
investigation, so long as they were 14 gauge or thicker.173  Economía asked whether tubing produced 
from cold-rolled steel could be used for conduction,  given its tendency to oxidize, and the Hylsa 
representative answered affirmatively, stating that  it could be coated, such as with varnish, or 
galvanized.174 
7.97 Economía asked Tubac whether it could guarant ee that none of its products sold without 
hydrostatic testing were used fo r conduction purposes.  The Tubac representative replied that the 
diameters of the industrial tubing mentioned by Hy lsa were different from those of A-53 or BS-1387 
pipe meaning that it would not be possible to thread  them or attach a coupling.  While it was possible 
that someone might use conduction pipe for mechanic al purposes, this would not make sense, because 
of the higher price for conduction pipe due to the hydrostatic test, while doing the reverse would not 
be possible.175  Economía stated that it would formulate an  information requirement to the parties on 
this issue. 
15. Arguments – 6 September 2002  
(a) Hylsa (GTM-20) 
7.98 Hylsa argued in its written brief following the pu blic hearing that the product definition was 
clear and that Tubac had "correctly considered" that product by characterizing it as tubing 
recognizable for conduction.  Hylsa stated that the definition was standard tubing produced from 
carbon steel, in diameters from ½ to 6", black or  galvanized, and recognizable for conduction, 
although it was possible that it could be "improperly" used for structural purposes.  Hylsa stated that in the Mexican market, certain structural tubing of schedule 40 meeting the "ASTM A500" standard 
                                                     
 
171 Exhibit GTM-19, p. 36. 
 
172 Exhibit GTM-19, p. 38. 
 
173 Exhibit GTM-19, p. 40. 
 
174 Exhibit GTM-19, p. 92.  In Hylsa's written responses to questions following the public hearing, 
Exhibit GTM-28(B), 3 September 2002, Hylsa submitted estimates of percentages of the investigated product 
destined for the conduction and structural markets, and indicated its view that imports of standard tubing from sources other than Guatemala "had no repercussions on the operational perf ormance either of Hylsa's Division 
of Steel Tubing or of the rest of the domestic industry , as far as the investigated product is concerned ...".  
 
175 Exhibit GTM-19, p, 98. 
 WT/DS331/R 
Page 41 
 
 
  was being used for conduction, and that this situa tion needed to be taken into account in any measure 
applied, to prevent the measure from being eluded.176   
(b) Tubac (GTM-29) 
7.99 In its written brief, Tubac argued that there was an absolute lack of a definition of the 
investigated product.  Tubac argued that the appli cant was confused regarding the product, sometimes 
saying that it included structural tubing and someti mes saying that it did not.  Tubac stated that it 
concluded from Hylsa's statements that the merc handise that entered under the two tariff categories 
that was not covered and needed to be expressly excluded was, among others, conduit tubing and thin-
walled tubing produced from hot-rolled steel in gauges 16 and thinner.  Tubac disagreed with Hylsa on the inclusion of any product produced from cold-rolled steel, arguing that such products could not 
be used for conduction.  Tubac also disagreed that th e fact that a given tube did not meet the ASTM or 
BS specification was irrelevant to whether it could be used for conduction purposes.  Tubac said that 
all of its conduction pipe met those standards, and that if its customers were using other kinds of 
tubing for that purpose it was on their own responsibility.  Tubac also stated, in the context of another argument, that in the absence of a precise definition by the applicant, the cr iterion used by Tubac to 
define the investigated product was: "pipe for conduction, welded, produced from hot-rolled carbon 
steel, in 1/2 " to 4" diameters, black or galvan ized, produced under the standards ASTM A-53 and 
BS-1387".   
16. Final Determination 
7.100  The Final Determination, at paragraphs 31 a nd 32, contains the conclusions of Economía 
concerning the scope of the investigated product.  These conclusions follow a lengthy recitation of the 
arguments of the parties on this i ssue that were presented over the course of the investigation.  These 
paragraphs indicate the following:  Paragraph 31 states that after analyz ing these arguments and 
evidence Economía had sufficient elements to cons ider that the principal use of the product was 
conduction, which was fundamentally linked to certa in ranges of diameters and wall thicknesses, and 
that the raw material – hot-rolled or cold-rolled steel sheet – or the standard under which it was 
produced, were not necessarily determinative for th at use.  Paragraph 32, chapeau, states that: 
 "... the Ministry found sufficient eviden ce to determine that, regardless of the 
standard or of the input used in manufacturi ng it, the physical characteristics and 
technical specifications of the investigated tubing are the following: tubing manufactured with carbon steel, with longitudinal weld, whether galvanized or black, of a diameter ranging from ½" to 6" (equivalent to 12.70 and 152.40 mm, 
                                                     
 
176 Exhibit GTM-20, p. 9.  In its 17 September 2002 responses to Economía's questions, Exhibit GTM-
31, Hylsa offered additional views of th e "product under investigation"/"like product" and, in particular whether 
or not it included structural tubing.  In response to a question relating to how its product corresponded to the 
given description of the product, Hylsa confirmed that "the investigated tubing fits in 100 per cent with the types 
of tubing referred to in the [document] cited..." and gave estimates about the percentage of the investigated product that was sold with hydrostatic tests as ASTM -A53 and as BS-1387.  Hy lsa also indicated:  "The 
remainder ... corresponds to structural tubing under investigation used for the purpose of conduction because it 
is commercially interchangeable and has the same phy sical and chemical characteristics as conduction tubing 
…"  Hylsa also responded that its production lines needed no modifications to ensure that the product satisfied 
these norms.  Much of the document in question is "confidential" (see our findings on the issue of the treatment 
of confidential information by Economía below); neverthe less, the public information in the responses and the 
titles of these annexes indicate that they include documents and testimonials and invoices from 
producers/distributors concerning the commercial practice of acquiring structural tubing without "hydrostatic 
testing" and using it for conduction; information from importers of certain types of structural tubing;  estimates of the breakdown of national production of the product under investigation;  and testimonials on the 
substitutability and representativeness of certain products. WT/DS331/R 
Page 42  
 
 respectively), with wall thicknesses of over 0.075" and up to 0.280" (equivalent to 
1.91 and 7.11mm, respectively), of gauges equa l to or greater than 14 and of various 
schedules  -  most commonly but not solely 30, 40 and 80."  (emphasis added) 
7.101  The remainder of paragraph 32 provides a list of  the particular considerations that led 
Economía to this definition.   
7.102  Concerning the Mexican "like product", the Final Determination, indicates that the 
investigated product as defined "is like the dom estically manufactured product ... because among 
other things it has the same physical character istics and diameter and wall thickness specifications, 
enabling it to fulfil the same functions and making it commercially interchangeable".
177  We examine 
below the contents of the Final Determination in respect of the injury an alysis of the domestic 
industry producing the "like product"178; and of the impact of the dumped imports on this domestic 
industry producing the "like product".179   
17. Factual finding by the Panel 
7.103  On the basis of the relevant record evidence,  as recited above, we are persuaded that, as 
Guatemala argues, Economía twice expanded the scope  of the investigated product.  The first 
modification, the addition of 4"-6" diameter pipe, was made in the Preliminary Determination.  We 
find this change to be self-evident from a comparison of the product descriptions in the Notice of Initiation and the Preliminary Determination.  The fo rmer states that the size range of the product 
imported from Guatemala was ½" to 4", while the latter states that product ranged in size from ½" to 6".   
7.104  Regarding the second modification, we find th at Economía added the structural tubing in 
question to the product scope late in the investiga tion (i.e., after the public hearing, which followed 
verification), rather than having included it in the scope from the outset.  In this regard, we attach 
particular importance to the following evidence reci ted above:  (1) the heavy emphasis placed, in the 
application, the "prevención", and the notice of in itiation, on the technical standards, especially 
ASTM A-53, as describing the "standard pipe" under i nvestigation; (2) the fact that Economía did not 
react, at the time Tubac submitted its questionnaire response and the accompanying submission, to 
Tubac's very explicit statements that it was repor ting data only on its sales of A-53 and BS-1387 pipe, 
its understanding of the scope of the investigated product; (3) the fact that Hylsa did not object, in its reply to the brief accompanying Tubac's questionnaire response, to the scope of products covered by 
Tubac's questionnaire response; (4) the fact that the Preliminary Determination states that the 
application indicated that structural was not subjec t to the investigation; (5) Economía's statement, 
during its technical meeting with Hylsa following the preliminary determination, that Tubac had 
provided a table containing all of the physical charac teristics and official standards applicable to its 
product codes, that Economía had analysed all of these product codes, and that only 32 of them fell 
within the definition of "standard pipe"; (6) the i ndications in the verification notice that the question 
of product codes was to be scrutinized in detail at  verification and the statements in the verification 
report indicating that all of Tubac's product codes were  analysed, and that at various points during the 
verification visit, the verification team itsel f identified the product codes corresponding to the 
investigated product; and (7) the debate during the pub lic hearing (which was held after verification) 
as to whether structural tubing should or should not be considered part of the investigated product, 
                                                     
 
177 GTM-23, para. 117. 
 
178 See also our factual summary of the data gather ed and taken into account for the purposes of the 
analysis of injury to the domestic industry, infra , paras. 7.301-7.312. 
 
179 Exhibit GTM-23, paras. 165-169. See infra para. 7.264 ff. WT/DS331/R 
Page 43 
 
 
  and the questions posed by Economía after the public h earing on this subject, which indicated that this 
was a new issue to Economía as of that point in the investigation. 
7.105  We emphasize that the above discussion constitu tes a factual finding that the product scope 
changes alleged by Guatemala took place, and is no t intended to resolve any of Guatemala's claims 
pertaining to these changes, nor is it meant to imply that changing the product scope of an 
investigation, as such, is problematic under the Anti-Dumping Agreement .  We note in this regard that 
the parties are in agreement that the Agreement does not prohibit, as such, changes to the product 
scope of an investigation.  We take up Guatemal a's claims pertaining to the changes to the product 
scope in the following sections.  We recall that thes e include claims related to both the injury and 
dumping findings, and as a result to the scope of th e measure eventually applied by Mexico.  The 
essence of all of these claims is that although Econom ía changed the scope of the investigated product 
twice during the course of the investigation, it did no t gather or analyse information pertaining to the 
added products.  In this regard, a lthough Guatemala alleges a violation of Article 2.6 in respect of the 
injury analysis, it has confirmed to us that it ma kes no allegation of any "dissimilarity" between the 
scope of the product under investigation, on the one  hand, and of the like product, on the other.   
7.106  We start our analysis of Guatemala's claims rela ted to the changes to the product scope of the 
investigation in the section below, with the dumping related claims.   
D. CLAIMS RELATING TO DETERMINATION OF DUMPING – RESORT BY ECONOMÍA TO FACTS 
AVAILABLE  
1. Claims pursuant to Article 6 
7.107  We begin our analysis of Guatemala’s claims concerning Economía’s Fi nal Determination of 
dumping by considering the claim that Economía’s resort  to facts available violated Articles 6.2, 6.4, 
6.7, 6.8, 6.9, 6.13, and Annex II.   
(a) Arguments of parties   
(i) Guatemala 
 7.108  Guatemala  claims that Economía's recourse to "facts  available" to calculate the margin of 
dumping was unjustified, and violated  Articles 6.2, 6.4, 6.7, 6.8, 6.9, 6.13, and Annex II of the Anti-
Dumping Agreement.   According to Guatemala, recourse to facts available is permitted only in 
exceptional circumstances, i.e., wh ere the interested party in question does not cooperate, or presents 
insufficient information; and even there, the investigating authority's  discretion to resort to facts 
available is not unlimited, as usable verified inform ation should be used.  Guatemala argues that the 
record indicates that the exporter provided to the Ec onomía all of the information that was requested 
of it, and cooperated throughout the inv estigation, but that nevertheless all
 of the exporter's 
information was rejected by Economía , in particular the information pe rtaining to the determination of 
dumping.  According to Guatemala, this was not only substantively unjustifie d, but Economía also 
failed to inform the exporter that it was rejecting th e information, and failed to give the exporter an 
opportunity to provide further explana tions, as required by Annex II of the Anti-Dumping Agreement .  
Guatemala further argues that in rejecting Tubac' s information and resorting to facts available, 
Economía also violated Articles 6.7, 6.9, and 6.13.   
(ii) Mexico 
 
7.109  Mexico  argues that Guatemala's claim is based on the propositions that: (1) there were no 
problems at verification, and (2) that Mexico did not advise Tubac that it was going to base the final 
dumping determination on facts available.  Mexico argues that neither assertion is correct.  WT/DS331/R 
Page 44  
 
 Concerning verification, Mexico points to language of Article 6.8 that allows resort to facts available 
where the interested party fails to provide neces sary information, or significantly impedes an 
investigation, and asserts that, in this case, the Final Determination recount s problems encountered at 
verification, including the "deliberate" incompletene ss of information provided by Tubac.  According 
to Mexico, the problems with the information provided by Tubac meant that Tubac both "did not 
provide necessary information" and "significantly impe ded the investigation"  in the sense of Article 
6.8, thereby justifying Economía’s determination that  the information was not usable.  In its first 
submission and first oral statement, Mexico argue d that the determinati ons published by Economía 
amply fulfilled the notice requirements of the Anti-Dumping Agreement  in respect of explanations of 
methodology and conclusions reached.  In its second  submission, second oral statement and answers 
to questions from the Panel, Mexico argued that th e verification report itself fulfilled the requirements 
of paragraph 6 of Annex II, by informing Tubac that its information might be rejected and by 
providing a five -day period for Tubac to submit any comments on the contents of the report.
180 
(b) Arguments of the third parties 
7.110  None of the submitting third parties  addressed this claim as such in its written submission.  
The European Communities , however, agrees with Guatemala in the context of its general 
procedural claims, that the IA did not inform the in terested parties of two "essential facts", one being 
the rejection of Tubac's price data as a result of  the verification visit, and the second being the 
inclusion of certain structural tubing in the prod uct definition.  In the view of the European 
Communities, this failure violates Article 6.9 of the Anti-Dumping Agreement.   Japan  also considers 
that the facts determining the product under consid eration are "essential" and subject to disclosure 
pursuant to Article 6.9.  The United States  argues that if there is to be a change to the product 
definition, the parties must be informed of the proposals relating thereto and given time to defend 
their interests.   
(c) Evaluation by the Panel 
7.111  This claim of Guatemala raises both substantive and procedural points concerning the use of 
facts available.  While Guatemala claims violations of a number of provisions in relation to 
Economía's use of facts available, the central substa ntive issue, which is the subject of Guatemala's 
claim of violation of Article 6.8 and Annex II, is Ec onomía's decision to reject all of the information 
submitted by Tubac on the basis of the results of th e verification visit, and to use instead, as facts 
available for calculating the margins of dumping,  information provided in the application and 
information obtained from importers.  We thus begin our  analysis with this issue.  In doing so, we will 
consider whether the evidence of record supports Economía’s decision to reject Tubac’s data, i.e., 
whether, on the basis of the record evidence, an  unbiased and objective investigating authority could 
have reached the conclusion that the nature and num ber of problems encountered at verification were 
so significant that none of Tubac’s data in fact c ould be used.  We then will consider whether, as 
Guatemala alleges, Economía failed to fulfil the re levant procedural requirements of Annex II, and 
whether Economía, by using for the normal valu e the data provided by Hylsa for purposes of 
initiation, failed to use "special circumspection".  In performing this analysis, we will apply the 
provisions of the Anti-Dumping Agreement  that govern the use by investigating authorities of facts 
available, i.e., Article 6.8 and Annex II.   
(i) Article 6.8 and Annex II 
 
7.112  We turn first to the text of these provisions.  Article 6.8 provides: 
                                                      
180 Mexico's second written submission, para. 123 and 125;  Mexico's second oral communication, 
paras. 25, 26 and 31;  Mexico's responses to questions 111 (a) and (b), and 182 from the Panel. WT/DS331/R 
Page 45 
 
 
   "6.8 In cases in which any interested pa rty refuses access to, or otherwise does not 
provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and fi nal determinations, affirmative or  negative, may be made on  
the basis of the facts available.  The provisions of Annex II shall be observed in the application of this paragraph." 
 
7.113  Annex II provides:   
 BEST INFORMATION AVAILABLE IN TERMS OF PARAGRAPH 8 OF ARTICLE 6 
  "1. As soon as possible after the initiation of the investigation, the investigating 
authorities should specify in detail the information required from any interested party, and the 
manner in which that information should be structur ed by the interested party in its response.  
The authorities should also ensure that the party is aware that if information is not supplied 
within a reasonable time, the authorities will be free to make determinations on the basis of 
the facts available, including those contained in the application for the initiation of the 
investigation by the domestic industry. 
  2. The authorities may also request that an  interested party provide its response in a 
particular medium (e.g. computer tape) or com puter language.  Where such a request is made, 
the authorities should consider the reasonable ability of the interested party to respond in the preferred medium or computer language, and s hould not request the party to use for its 
response a computer system other than that u sed by the party.  Th e authority should not 
maintain a request for a computerized respon se if the interested party does not maintain 
computerized accounts and if presenting the r esponse as requested would result in an 
unreasonable extra burden on the interested part y, e.g. it would entail unreasonable additional 
cost and trouble.  The authorities should not main tain a request for a response in a particular 
medium or computer language if the interest ed party does not maintain its computerized 
accounts in such medium or computer language and if presenting the response as requested would result in an unreasonable extra burden on th e interested party, e.g. it would entail 
unreasonable additional cost and trouble. 
  3. All information which is verifiable, which is appropriately submitted so that it can be 
used in the investigation without undue difficulti es, which is supplied in a timely fashion, and, 
where applicable, which is supplied in a medi um or computer language requested by the 
authorities, should be taken into account when determinations are made.  If a party does not 
respond in the preferred medium or computer language but the authorities find that the circumstances set out in paragraph 2 have b een satisfied, the failure to respond in the 
preferred medium or computer language should not  be considered to significantly impede the 
investigation. 
  4. Where the authorities do not have the ab ility to process information if provided in a 
particular medium (e.g. computer tape), the information should be supplied in the form of 
written material or any other form acceptable to the authorities. 
 
 5. Even though the information provided may not  be ideal in all respects, this should not 
justify the authorities from disregarding it, provide d the interested party has acted to the best 
of its ability. 
 
 6. If evidence or information is not accepte d, the supplying party should be informed 
forthwith of the reasons therefore, and s hould have an opportunity to provide further 
explanations within a reasonable period, due account being taken of the time-limits of the 
investigation.  If the  explanations are consid ered by the authorities as not being satisfactory, WT/DS331/R 
Page 46  
 
 the reasons for the rejection of such evidence or information should be  given in any published 
determinations. 
  7. If the authorities have to base their fi ndings, including those with respect to normal 
value, on  information from a secondary sour ce, including the information supplied in the 
application for the initiation of the investig ation, they should do so with special 
circumspection.  In such cases, the authorities should, where practicable, check the information from other independent sources at their disposal, such as published price lists, 
official import statistics and customs returns,  and from the information obtained from other 
interested parties during the investigation.  It is  clear, however, that if an interested party does 
not cooperate and thus relevant information is being withheld from the authorities, this 
situation could lead to a result which is less favourable to the party than if the party did 
cooperate." 
 7.114  We now turn to Guatemala’s specific allega tions and the related record evidence.   
(ii) The Final Determination concerning resort to facts available 
7.115  The first of Guatemala's facts available claims is that Economía unjustifia bly decided to reject 
Tubac's data in their entirety, and to rely instead on facts available (t he data from the application for 
normal value and data from importers  for export price).  According to Guatemala, the data submitted 
by Tubac were successfully verified by Economía, any problems in the data  were small and Tubac 
acted to the best of its ability.  Thus, Guatem ala argues, Economía acted inconsistently with 
paragraphs 3 and 5 of Annex II in rejecting the data, and had no basi s under Article 6.8 to resort to 
facts available, as Tubac neither failed to provid e necessary information nor significantly impeded the 
investigation.  Mexico, for its part, argues that the problems encountered at verification were so 
numerous and so significant that Economía was just ified in concluding that Tubac had deliberately 
underreported and misreported its data, and thus that  Tubac's entire database was biased and could not 
be relied upon.  In particular, Mexico argues, "to a lter figures has consequences for the investigation, 
and these are set forth clearly in Article 6.8 of the Anti-Dumping Agreement: 'preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available' if a party 
significantly impedes the investigation. To alter the fi gures deliberately is to impede the investigation, 
so the company was aware of the consequences of its  actions and cannot pretext that the investigating 
authority failed to inform it that the differences in  the adjustment have implications for all the data 
used to calculate normal value."
181  Mexico asserts that Economía thus was fully justified in rejecting 
Tubac's data in their entirety and relying on facts available.    
7.116  We note in the first instance that the parties ag ree that Economía based its decision to reject 
Tubac’s data as submitted on the results of verificati on - in particular the reasons cited in paragraph 
80 of the Final Determination - and that paragrap hs 81 and 82 of that Determination contain the 
explanation of the significance for the Determin ation of these reasons.  These paragraphs are 
reproduced in their entirety below.  Both parties al so agree that the verification report (Exhibits GTM-
15/MEX-12) constitutes the record evidence concerning th e results of the verification of Tubac's data.  
We therefore will review the pertinent parts of th e Final Determination and the verification report in 
detail.  
7.117  In conducting this review, we recall our obligations under th e standard of review in 
Article 17.6.  In particular, we are bound to evalua te the claims and argumen ts before us, and to 
render our findings, on the basis of what actually happened in the investigation as reflected in the 
record thereof.  We are not to reweigh evidence so as to conduct a de novo  review of the evidence.  
Nor are we to take into account post hoc  arguments as to the reasons fo r decisions by the investigating 
                                                      
181 Mexico's response to question 181 from the Panel. WT/DS331/R 
Page 47 
 
 
  authority which reasons cannot be found in the authority’s own contemporaneous explanations 
contained in its determinations a nd other documents of record.  Rath er, we will consider whether a 
unbiased and objective investigating authority could ha ve reached the conclusions referred to in the 
Final Determination on the basis of the relevant r ecord evidence (namely the verification report) as to 
what happened at verification. 
7.118  The paragraphs of the Final Determination that pertain to the results of the verification of 
Tubac's data and Economía's decision to r esort to facts available read as follows: 
"Verification visits  
"78.  Pursuant to Articles 83 of the FT A, 143 and 173 of the FTA Regulations, and 
6.7 and Annex I of the Anti-Dumping Agreement, the investigating authority carried 
out the following verification visits to ascer tain that the information and evidence 
provided by the companies in the course of  the proceedings were correct, complete 
and came from their accounting records, to evaluate the methodology used in 
presenting the information submitted, to colla te the documents in the administrative 
file and obtain details on them. As rega rds the exporting company, the visit was 
notified in advance to the Government of the Republic of Guatemala in accordance 
with Annex I, paragraph 5 of the Anti-Du mping Agreement [sub paragraphs A and B 
provide the dates of the verifications of Tubac and Hylsa, respectively.]   
79.  The Ministry took detailed minutes of the abovementioned verification visits, 
recording the results of the visits in ac cordance with Articles 83 of the FTA and 
173 of the FTA Regulations. They have been pl aced in the administrative file of this 
investigation and are public documents having full probative value within the 
meaning of Articles 85 de la FTA, and 129 and 202 of the Federal Code of Civil 
Procedure, which applies subsidiarily. 
Results of the verification visit  
80.  From the verification visit and an anal ysis of the information provided by Tubac, 
the Ministry found the following: 
A. All the information which the company provided prior to the verification visit 
and which was collated in the course of the visit with the company's accounting 
records and the originals of the document s, pertains solely to standard pipe 
manufactured to two international standard s, British Standard BS 1387: 1985 and 
American Society for Testing and Materials standard ASTM: A53-97, both of which 
are subject to hydrostatic testing.   
B. The company explained that in the da tabase sent to the Ministry, it did not 
record all the discounts, rebates and ref unds from domestic market sales and export 
sales to Mexico and other countries. The veri fication team noted this when examining 
the company's accounting records. 
C. In examining the supporting accoun ting documents for the information 
supplied by the company, it was noted that for four product codes, some of the figures the company supplied before the verification visit and which were used in calculating 
constructed value, do not come from its accounting records. 
D. As to the adjustments for internal freight provided by Tubac, the team found 
that in 57 per cent of the domestic market transactions reported prior to the WT/DS331/R 
Page 48  
 
 verification visit, the transport used to carry  the goods was the customer's own, so the 
company ought not to have reported any adjustment on this account. Similarly, in the transactions regarding the market for exports to Mexico reported prior to the verification visit, the Ministry found discrepancies between the export freight reported and the export freight verified.  
E. As to the adjustments fo r external freight, in examining a third export market 
of Tubac's, the verification team found discrepancies between the figures reported prior to the verification visit and the verified figures. 
F. The company was unable to provide accounting documents in support of the 
information it used to determine the adjust ments in respect of insurance and physical 
differences reported to the Ministry prior to the verification visit. 
 G. As to the exporting company's indicators for the headings production, 
inventories, domestic market sales, export sales to other countries and installed capacity for 1999 and 2000, and 1999 export sales to Mexico, in examining the accounting information supplied by the company at the time of the visit the 
verification team noted that the information sent to the Ministry prior to the visit was 
not accurate and did not come from the accounting records. 
 81. In view of the findings made in the course of the verification visit to Tubac 
referred to in point 80 of this Resoluti on, the Ministry canno t use the company's 
information to calculate normal value, export price or any price discrimination 
margin because the information the company supplied prior to the verification visit 
on transactions regarding domestic market sal es, exports to Mexico and exports to 
other countries, constructed value, domestic and external freight and adjustments for 
insurance and physical differences, is in complete, inaccurate and/or does not come 
from the company's accounting records. 
 82. Since the information supplied by the exporting company Tubac is not 
complete, is inaccurate and/or does not co me from its accounting records, it will be 
disregarded and the Ministry will proceed on the basis of the facts available, in accordance Article 6.8 of th e Anti-Dumping Agreement. 
[…] 97. Because the information provided by the export company Tubac as described 
in points 78, 79, 80, 81 and 82 of this Resolution was disregarded, the Ministry was 
unable to determine a price discrimination ma rgin for the company on the basis of its 
own information. Consequently, in accordan ce with Article 5.2 of the Anti-Dumping 
Agreement which establishes that the appli cation to initiate an investigation shall 
include evidence of:  (A) dumping, (B) injury, and (C) a causal link between the two, and that simple assertion, unsubstantiated by  relevant evidence, cannot be sufficient 
to meet the requirements of this provision, with Article 6.8 of that Agreement, and 
with Article 54 of the FTA, the Ministry calculated the price discrimination margin applicable to the company on the basis of the facts available.  
98. The Ministry took as facts availabl e the information supplied both by the 
applicant and by the importers of the inv estigated product, as described in points 102 
to 114 of this Resolution." WT/DS331/R 
Page 49 
 
 
  7.119  Taking these passages together, we understand the Fi nal Determination first to describe, at 
paragraph 80, problems encountered at verification, and then to conclude, in paragraphs 81 and 82, 
that because of the nature and number of those problems, Tubac's data were disregarded, and facts available were used instead.  Paragraphs 97 and 98 i ndicate that the facts availa ble to be used were the 
data provided by Hylsa in the applicati on and data obtained from importers.   
(iii) Record evidence regarding the problems ref erred to in paragraph 80 of the Final 
Determination 
7.120  We turn now to a detailed examination of the record evidence regarding each of the problems 
identified in paragraph 80 of the Final Determination.   
Scope of the products for which Tubac provided data
 
7.121  The first of the issues cited in the Final Dete rmination, which appears at subparagraph A of 
paragraph 80 of the Final Determin ation, is that Tubac provided da ta only on conduction pipe meeting 
the ASTM A-53 and the BS-1387 standards, both of which are subject to hydrostatic (i.e., pressure) 
testing.  Factually, the record is clear that these  were the only products on which Tubac provided data, 
as indicated in paragraphs 7.74 and 7.75, supra .   
7.122  As discussed in detail below, however, the parti es’ views differ as to the significance of this 
issue as a factor leading to Economía’s decision to re ject all of Tubac’s data.  For Guatemala, this 
reference signifies that Tubac was penalized by Ec onomía (in the sense that Economía in part based 
its decision to reject Tubac's data on this fact) for not having submitted data on any other products, 
even though according to Guatemala, Economía never requested such data.182  Mexico, at least in 
certain submissions183, disagrees with Guatemala's characterization of this aspect of the Final 
Determination, arguing that Tubac’s not having pr ovided data on products other than A-53 and BS-
1387 pipe was not among the reasons for Economía’s rejection of Tubac’s data. 
7.123  We will consider first the issues identified in  subparagraphs B through G of paragraph 80 of 
the Final Determination, which pertain to the data that were  provided by Tubac.  After this we will 
consider the issue referred to in subparagraph A, as to the completeness of the scope of those data.   
Underreporting of certain discounts, rebates and refunds  
7.124  The problem as described in subparagraph B of paragraph 80 of the Fi nal Determination is 
that at verification, Tubac explained that it had not  reported in its questionnaire all of the discounts, 
rebates and refunds related to inte rnal sales, and to exports to Me xico and third parties, and the 
verification team confirmed this in reviewing Tubac's accounting registers.  We asked Mexico to 
identify which portion of the verification report identified this problem, and Mexico cited the 
following passages:184  
                                                      
182 First submission of Guatemala, paragraphs 192-194. 
 
183 See, Mexico's response to question 106 (a) from the Panel.  As discussed at paragraph 7.159, infra ., 
however, Mexico's position on this issue appears to have changed over the course of this dispute. 
 
184 In question 107 from the Panel in connection with  the first substantive meeting, we asked Mexico, 
for each problem at verification cited in  the Final Determination as a basis fo r resorting to facts available, to 
provide a cross-reference to the pertinent passages in th e verification report, and to  explain how each of these 
passages supported the conclusion that Tubac's information was not verifiable or verified.  Mexico submitted its reply to this question only at the time of the second substantive meeting, and Mexico resubmitted this reply in 
responding to question 132 from the Panel following the se cond substantive meeting.  In question 132, we asked WT/DS331/R 
Page 50  
 
 Page 12: 
"... the company informed the verification team that in preparing the supporting 
accounting documents for the verification vis it, it realized that the credit, debit, 
charge ( cargo ) and payment ( abono ) notes were not entered in the database sent to 
the Ministry." 
Page 13: 
"Credit notes
 
"Since the company did not include the charge , payment, credit and debit notes in the 
database sent to the Ministry, at the verifi cation team's request it supplied the credit 
note daily logbook (which included the cr edit, debit and payment notes) and the 
general daily logbook ( diario mayor general ) of the corresponding accounts in which 
these operations are entered for July 2000 - J une 2001. It also supplied copies of the 
credit notes relating to the sales invoices included in the database." 
7.125  We note that factually these passages from th e verification report indicate, as stated in 
subparagraph B of paragraph 80, that Tubac's qu estionnaire response underreported discounts, rebates 
and refunds.  That said, however, these passages give  only an incomplete picture of what happened at 
verification in regard to this issue when all of the relevant passages of the verification report are 
examined.  We note in the first place that the pass age makes clear that it was Tubac itself that brought 
this problem to the attention of the verification te am ("the company informed the verification team ") 
on its own initiative.  Second, the passages cited by Mexico omit the parts of the verification report that describe what then occurred at verification in re gard to these missing data.  This is set forth in the 
following passages.   
Page 12, immediately following the first passage above:   "At the request of the verification team
, the company provided the records of all notes 
for the period July 2000 - June 2001, together with the supporting accounting documents and reconciliation with the financ ial statements, and copies of the notes 
affecting sales transactions pertaining to th e investigated product, recorded in the 
aforementioned database. 
... ... No significant differences were found , and the explanation and supporting 
documents for the reconciled figures were to  the satisfaction of the verification team
." 
(emphasis added) 
Page 13, immediately following the second passage above: 
"Company staff explained the origin of  every credit note and supplied accounting 
records for the entire amount recorded in the credit note daily logbook. The 
verification team checked that the entire amount recorded in the credit note logbook 
                                                                                                                                                                     
Mexico to provide a copy of the Verification Report of Tubac with markings in the margins to identify the 
relevant passages referred to in the cross-references  it had provided in response to question 107.  Mexico 
submitted this annotated version of the verification repor t without an exhibit number, and then subsequently 
submitted as Exhibit MEX-12 an unannotated copy of the verification report for Tuba c.  We have transferred 
Mexico's annotations to Exhibit MEX-12.  Thus our references to Exhibit MEX-12 are to the annotated version 
of the verification report for Tubac.    WT/DS331/R 
Page 51 
 
 
  tallied with the accounting entries of the ge neral logbook and the statement of results, 
and that the credit note data tallied with the credit note logbook."   
7.126  The passages from page 12 come from the section of the verification report dealing with the 
"Prueba de totalidad", in which the total sales fi gures for domestic sales and export sales to Mexico 
and to third countries were verified.  As the fu ll passages make clear, once the missing data were 
provided by Tubac to the verification team, all of th e totals in the accounting registers fully reconciled 
and no further errors or problems were encountered.185  The passages from page 13 come from the 
subsection of the "Prueba de totalidad" section of the report entitled "Credit notes", and the same is 
true there.  That is, the missing data provided by  Tubac were checked against the main diaries of 
credit notes and no errors were found.  In other word s, the problems that were found in the sales data 
in the database due to the underreporting of discounts,  rebates and refunds were corrected on the spot.  
From the verification report, these appear to have been the only problems identified in respect of the 
sales data.   
Errors in certain data used for constructed value calculations  
7.127  Subparagraph (C) of paragraph 80 of the Final Determination indicates that for four product 
codes, certain cost figures reported by Tubac prior to verification, and with which constructed values 
were calculated, could not be traced to Tubac's acc ounting records.  Guatemala argues that there is no 
corresponding reference in the verification report, and thus questions the factual basis for this finding by Economía.  In answer to our question, Mexico cited the following passage in the verification report 
as the basis for this subparagra ph of the Final Determination.
186  We note that this passage, which is 
the only one cited by Mexico as related to subparagr aph C, also is cited by Mexico as relevant to 
subparagraph G.  That is, Mexico cites no passage in the verification report that deals exclusively with 
the problem referred to in subpa ragraph C of paragraph 80.   
Page 11: "The verification team selected the codes unde r investigation, collated the total sum 
of the volume with that sent to the Ministry and found differences. The total of the 
investigated codes was converted into United States dollars using the average 
exchange rate of the relevant month. Differences were found with what had been 
reported to the Ministry." 
We see nothing in this passage related in any way to constructed value, which is the subject of the 
problem referred to in subparagraph C of pa ragraph 80 of the Final Determination.   
7.128  Looking elsewhere in the verification report, be ginning on page 14 we find an entire section, 
divided into four subparts, devoted  to constructed value.  No passage in this section is cited by 
Mexico as related to the content of subparagraph C of paragraph 80, however.  Nor do we find any 
indication in this section of any problems whatsoever  at verification concerning the data that Tubac 
had submitted in connection with cons tructed values.  In particular, in the subpart on raw materials, 
the verification report indicates that the correct volumes and values of raw materials had been 
reported, as well as the correct average unit costs.
187  In the subpart on direct labour, the verification 
                                                      
185 Exhibits GTM-15/MEX-12, page 12, second paragraph under the heading "Prueba de totalidad".  
See similar statements as to the lack of significant differences in the data, and the "satisfactory" results of this 
part of the verification, in the first partial paragraph on page 13, and the first, second and third full paragraphs 
on page 13, of the verification report. 
 
186 Exhibit MEX-12. 
 
187 Exhibits GTM-15/MEX-12, page 14. WT/DS331/R 
Page 52  
 
 report indicates that Tubac provided the monthly salary reports along with documentation and the 
underlying accounting registers, and a work sheet for how Tubac had prorated the amounts to each 
cost centre for each product code requested in the pre-verification notice.
188  Concerning indirect 
labour, and indirect manufacturing costs, the verifica tion report at page 15 states that the verification 
team confirmed the correctness of the costs de rived from the cost centre sheets, and that only 
"differences of little significance" were found when the costs of production for selected product codes 
taken from the cost sheets of the costs centre for total costs were compared to the production cost 
reported by Tubac to Economía.  Similarly, only " differences of little significance " were found in 
converting the production costs from quetzales to do llars, and comparing these results with what 
Tubac had reported to Economía.  Concerning se lling and administrative expenses, financial 
expenses, and profits, the verification report also contains no indication of any problems.  To the 
contrary, the report indicates that the verification t eam confirmed that the figures used to assign these 
items to product codes came from Tubac's accounting registers, and that "no differences were found" 
in calculating the factors that were used to assi gn these items to the product codes.  As a further 
indication that the verification team apparently w as satisfied with the constructed value data as 
submitted, we note that in the section on adjustments for physical differences189  the verification team 
asked Tubac to recalculate the phys ical difference adjustments "based on the cost sheets that had been 
validated and used for constructed value".   
7.129  Based on the foregoing, we find no factual suppor t in the verification report for the statement 
in subparagraph C of paragraph 80 that problems we re encountered in respect of constructed value 
data for four product codes.  Nor has Mexico iden tified any other factual support from the record for 
this statement.   
Internal freight and freight on exports to Mexico  
7.130  Subparagraph D of paragraph 80 states that at verification, it was discovered that Tubac had 
incorrectly included a charge in respect of freight fo r all of its internal sales, whereas in reality for 
57 per cent of these sales the purchaser had used its own trucks to transport the merchandise.  
Subparagraph D also states that Economía had enc ountered discrepancies between the freight reported 
in respect of export sales to Mexico and the data that were verified.   
7.131  In response to our request, Mexico identified the following passage in the verification report 
as the basis for the statement in subparagraph D of paragraph 80 of the Final Determination 
concerning internal freight:190   
Page 7: 
"It was found that in a large proportion of  the sales to the Guatemalan market, the 
customers' own transport was used, so ther e was no freight charge. However, in the 
database sent to the Ministry, all internal sal es transactions were adjusted for freight."   
7.132  Here, similarly to the case of subparagraph B, we note that while factually this passage from 
the verification report indicates, as stated in subparag raph D of paragraph 80, that in Tubac's database 
internal freight charges were incorrectly attributed  to certain domestic sales, the full content of the 
verification report related to this issue tells a different story from that reflected in the Final 
                                                      
188 Ibid. 
 
189 Exhibits GTM-15/MEX-12, page 10. 
 
190 Exhibit MEX-12. WT/DS331/R 
Page 53 
 
 
  Determination.  In particular, immediately foll owing the passage cited by Mexico, the verification 
report states: 
Pages 8 and 9: "During the visit, every transaction involv ing a freight charge was identified and a 
check was made in the company's accounting system  that the operation actually took 
place, including the amount corresponding to freight.  
The company was asked to supp ly an electronic and a paper list of all operations 
involving freight. From the list, ten oper ations entered as involving freight were 
selected for examination in the accounting syst em in order to check  that an amount 
was actually charged for freight. 
From the examination, no discrepancies were found  between the information 
examined and that in the company's accounting system. The Ministry will therefore remove adjustment for freight from the database for all operations in which the 
customers' own trucks were used for transport."  (emphasis added) 
7.133  Taking all of these paragraphs together, it is clear that, although the data submitted in the 
questionnaire response incorrectly attributed an inte rnal freight charge to certain domestic sales, at 
verification this error was corrected through the veri fied identification of the sales that did not include 
a freight charge, and that Economía was satisfied with  these corrections (given its stated intention to 
adjust the data base on the basis of the verification results).   
7.134  In response to our request, Mexico identified the following passage in the verification report 
as the basis for the statement in subparagraph D of paragraph 80 of the Final Determination 
concerning freight to Mexico:
191   
Page 8: 
"Because, in the sales to Mexico, the freight  adjustment figure was an average, an 
examination was done of a sample of fifteen invoices of transport companies for which the amount was obtained in quetzals pe r tonne and converted into dollars using 
the end-of-period exchange rate for each month of the investigation period.  The 
figure in dollars per tonne for each operation in the sample of invoices to transporters 
was used to obtain a simple average freight cost.  That figure must replace the average figure for freight entered in the data base, because it is verified information." 
7.135  Here, we do not read this passage of the veri fication report as referring to any problem or 
discrepancy in the data at all.  Rather, we view this passage as indicating that the verification team 
decided that, rather than verifying the freight charge on export sales to Mexico as reported by Tubac 
by examining each such transaction in the data b ase and recalculating the average freight charge on 
this basis, it would select a sample for which it w ould verify the data, and then would calculate the 
freight charge on the basis of the sample it had selected.  Obviously, the average freight charge 
calculated on the basis of a subset of the relevant transactions will almost certainly be different from 
the average freight charge calculated on the basis of  all of the relevant transactions.  This, however, 
would not make the original figure wrong, and indeed we do not read the verification report as suggesting that the figure reported in Tubac's ques tionnaire response was found to be wrong.  We thus 
do not consider that this passage factually supports  the statement in paragraph D that discrepancies 
were found in the data reported by Tubac on freight ch arges in respect of its export sales to Mexico.   
                                                     
 
191 Ibid. WT/DS331/R 
Page 54  
 
 Discrepancies in freight on third country export sales
 
7.136  Subparagraph E of paragraph 80 of the Final De termination indicates that at verification, 
discrepancies were found in the information that had been reported concerning shipping charges for 
export sales to a third country.  In response to our  question, Mexico identified the following passage 
in the verification report as corresponding to this subparagraph:192   
Page 9: 
"For freight to Costa Rica, a payment made to a transport company in two of the sales 
operations reported in the database was presen ted. On the basis of the information 
from these invoices an adjustment for freight was calculated that did not tally with the 
one in the database.  Although the two vary only slightly , the correct information is 
the verified information. This new inform ation is the weighted average of the two 
freight operations to Costa Rica.  The figur es used to calculate the freight average 
were taken from the sample of sales to third markets."(emphasis added) 
7.137  We do not consider that this passage points to any error at all in the data reported by Tubac 
for freight charges on sales to Costa Rica.  Rather, as  was the case in respect of the freight charges on 
export sales to Mexico, it appears from this passage that the verification team chose to verify the 
freight charges for sales to Costa Rica on the basis of  a sample of two transactions from the data base, 
rather than by recalculating the charges for all of the transactions in the data base.  Thus, it appears 
that the reason for the difference that was found, wh ich was characterized as "pequeña", was simply 
that the two figures were calculated on the basis of tw o different sets of data, one  being a subset of the 
other (which subset was chosen by the verificati on team).  We thus do not see that this passage 
factually supports the statement in subparagraph E that discrepancies were found in the freight 
charges on third country sales.   
Adjustments for insurance and physical differences  
7.138  Subparagraph F of paragraph 80 of the Final De termination indicates in respect of insurance 
and physical differences that at verification,  Tubac was not able to provide support from its 
accounting records for the previously-reported informa tion that it had used to determine adjustments 
for insurance and for physical differences.  
7.139  Concerning insurance , in response to our request, Mexico did not identify any corresponding 
passage in the verification report.193  The verification report, however, contains the following passage 
pertaining to insurance: 
"To back up the export insurance figure, th e transport policy of Aseguradora General 
S.A. was presented, which sets out the rate applying to the amount of the sale.  Also 
presented were two partial payments to Aseguradora General and a company called 
Occidente de Seguros .  These payments covered two months of the investigation 
period, November and December 2000.  The endorsements submitted for the two insurance companies set out the amount of the premium applied to the value of the 
goods transported. 
                                                     
 
192 Ibid. 
 
193 Ibid. WT/DS331/R 
Page 55 
 
 
  Furthermore, the value of sales for November and December 2000 was presented in 
order to corroborate that the total of th e amounts insured in the two companies is 
similar to the total monthly sales of Tubac S.A." 194 
7.140  We do not read this passage as identifying an y problems that were found at verification.  
Rather, it simply describes the supporting documents that Tubac presented regarding the adjustment it 
had calculated, and indicates that the documents s howed that the sum of the insured amounts for two 
particular months was similar to the total monthly sales of Tubac.  We thus find nothing in this 
passage that factually supports the statement in subparagraph F that Tubac was unable to provide 
support from its accounting records for the insura nce adjustment reported in its questionnaire 
response.   
7.141  Concerning the adjustments for physical differences , Mexico identified the following passage 
as corresponding to the reference in subparagraph F:195   
Page 10: "Physical differences
 
"The verification team asked the company for an explanation of the methodology 
used to the determine physical differences.  The company was unable to reproduce 
the methodology, so the Ministry asked it to  calculate the cost differences on the basis 
of the validated cost centre sheets used  for constructed value.  Using this 
methodology the company worked out ne w physical difference figures, which 
differed significantly from the ones submitted during the investigation." 
7.142  This passage indicates factually that at veri fication Tubac was not able to reproduce the 
methodology it had used to calculate the adjustments fo r physical differences that were reported in its 
questionnaire response, as stated in subparagraph F.  It  is also clear from this passage, however, that at 
verification Economía not only identified an alternat ive basis on which to calcu late these adjustments 
– namely the cost data that had been verified in  connection with constructed value – but also had 
Tubac perform the recalculations on the spot from those verified data.  In other words, at verification, 
Economía obtained and successfully verified corrected data on these adjustments.   
Indicators for Tubac  
7.143  Subparagraph G of paragraph 80 of the Final Determination states that at verification, 
Economía found that certain information that Tubac had reported in its questionnaire response 
concerning its indicators was inexact and did not come from Tubac's accounting registers.  The 
information identified was:  production, inventori es, domestic sales, export sales to third countries, 
installed capacity for 1999 and 2000, and export sal es to Mexico for 1999.  In response to our 
question, Mexico identified the following passag es in the verification report as corresponding to 
subparagraph G:196 
                                                      
194 Exhibits GTM-15/MEX-12 at pages 9-10. 
 
195 Exhibit MEX-12. 
 
196 Ibid. WT/DS331/R 
Page 56  
 
 Page 11: 
"The sales for July and December 2000 were reviewed together with the "Prueba de 
totalidad" of the sales, which is described in the relevant paragraph of this report. The 
figures reviewed for volume and value were collated with those in Annex A3 and the 
differences found were of little significance
." (emphasis added) 
"... The verification team selected the codes subject to investigation, and compared 
the total volume with that sent to the Mini stry and noted differences. It converted the 
total amount pertaining to the investigated codes into United States dollars using the average exchange rate of the correspondi ng month, and found differences with the 
figures sent to the Ministry." 
7.144  Concerning this passage, we note first that it refers exclusively to sales
, and does not refer at 
all to production, inventories or installed capacity.  Second, we take note of the first sentence of the 
passage, which indicates that th is review was undertaken in c onjunction with the "Prueba de 
totalidad".  As discussed above, at paragraphs 7.12 4 to 7.126, the verification report states that once 
the adjustments for the discounts, rebates and refunds were corrected , the "Prueba de totalidad" was 
verified satisfactorily.  We infer from this that th e discrepancies in the sales data referred to in the 
passage quoted above derived from the same source, a nd ultimately were satisfactorily verified in the 
context of the "Prueba de totalidad".  Indeed, if this were not the case, we do not see how the 
verification report could have indicated that the "Prueba de totalidad" ultimately was satisfactorily 
verified.   
7.145  While, as noted, the passage of the verification report cited by Mexico in response to our 
question does not refer at all to production, invent ories or installed capacity, other sections of the 
verification report do address these topics.  We exam ine each of these in tu rn to see whether they 
provide factual support for the statement in su bparagraph G of paragraph 80 of the Final 
Determination. 
7.146  Concerning production , the verification report contains the following passage: 
Page 10: 
"Production  
"The company explained that in preparing the supporting documents for the 
information in Annex 3, it found differenc es with the information sent to the 
Ministry.  It therefore supplied a worksh eet identifying the differences and sent the 
production reports in units and tonnes for th e manufacturing and galvanization plants 
for January-December 2000 and reports on the value of production for the selected 
months."   
"The verification team collated the pr oduction volume shown in the production 
reports with that in the worksheet s upplied at the verification and found no 
differences .  The production evaluation by product family was likewise collated with 
the general daily log and no differences were found ." (emphasis added) 
7.147  We do not consider that this passage provides factual support for the characterization in 
subparagraph G that the verification team encounter ed discrepancies in the production figures during 
verification.  To the contrary, this passage indicat es (1) that it was Tubac that discovered problems in 
the data that it had provided in its questionnaire respon se, that brought this matter to the attention of 
the verification, and that furnished documentation and calculations reconciling the differences; and (2) WT/DS331/R 
Page 57 
 
 
  that the verification team reviewed this corrected information in detail and found no discrepancies at 
all.  In other words, at verification Tubac voluntarily identified the error and provided corrected information, which Economía verified on the spot. 
7.148  Concerning inventories
, the verification report contains the following passage: 
Page 11: 
"Inventories  
"The company provided reports of inventories from the inventory system and added 
up the volume of the investigated codes.  The verification team compared this total 
with that sent to the Ministry and found differences.  The company also provided the inventory value lists showing the investig ated codes.  The total by family was 
collated with the general daily log for th e selected months and no differences were 
found." 
7.149  This passage indicates factually that certain diffe rences were identified in the inventory data.  
There is no indication of the size of the differences .  We note that these differences were limited to the 
information on inventory volume, however, as the verification report indicates that no differences 
were encountered in the data reported by Tubac on th e value of inventories.  The passage also makes 
clear that Economía obtained the correct volume figures from Tubac's accounting records. 
7.150  Concerning installed capacity
, the verification report contains the following passage: 
Page 11-12: "Installed capacity
 
"The company explained that it calculated in stalled capacity for 1 ¼" light conduction 
pipe ( tubo de cañería liviano de 1¼)  because this is the product that represents the 
company's average production.  It also said that real installed capacity was calculated 
using the average monthly output and mach ine utilization data for the period from 
January to May 2002."  
"For the purpose of the review the comp any supplied worksheets showing ideal and 
real installed capacity, the data on downtim e, the output data for January-May 2002 
and the technical specifications of the plant mill. " 
"To verify ideal installed capacity, the verification team collated the data on 
theoretical maximum speed of output with the technical specifications of the mill.  Pipe weight was collated with the technical specifications of the product;  the arithmetical calculations were checked, a nd no differences were found.  The plant's 
installed capacity was determined on the basis of real machine utilization, the 
percentage of which was compared with  the data on mill downtime, and average 
monthly output was collated with the output data for January-May 2002.  Differences 
were found with the information supplied to the Ministry." 
7.151  Factually, this passage indicates that some di fferences were encountered at verification in 
respect of at least part of the capacity data that Tubac had reported in its questionnaire response.  The 
passage does not make clear the exact nature of the differences, and indeed indicates that some of the 
data were verified with no differences found.  The passage also indicates that at verification, the 
installed capacity figure was "determined" on the ba sis of the information examined concerning the WT/DS331/R 
Page 58  
 
 utilization of the machinery, machine downtime, and production reports.  From th is we conclude that 
while certain differences were encountered in the data as reported in the questionnaire response, the 
verification process itself resulted in a correct and verified calculation of the capacity figures.   
Product scope of the data provided by Tubac (subparagraph A of paragraph 80
) 
7.152  We now turn to the remaining issue listed in  paragraph 80, the product scope of the data 
provided by Tubac , in particular, the limitation of those da ta to A-53 and BS-1387 pipe.  As noted 
above, Guatemala argues that this reference signifi es that Tubac was penali zed by Economía for not 
having submitted data on any other products (in the sense that Economía in part based its decision to 
reject Tubac's data on this fact), even though acco rding to Guatemala, Economía never requested such 
data.197  We note that this issue is closely relate d to Guatemala's argument (in respect of which it 
raises a number of claims) that, late in the in vestigation, Economía expanded the scope of the 
investigated product by adding certain structural tu bing.  In the context of this claim, Guatemala's 
argument is that the scope of the data that Tub ac submitted corresponded to the initial definition of the 
investigated product, but that once the structural tubing was added to the investigation, Tubac was 
faulted by Economía for the "incompleteness" of its  data submission, i.e., for not having submitted 
data on the structural products in qu estion, in spite of the fact that  Economía had never requested such 
data.   
7.153  Mexico disagrees with Guatemala's characterization of this aspect of the Final Determination.  
Mexico argues that Tubac’s not having provided da ta on products other than A-53 and B-1387 pipe 
was not among the reasons for Econom ía’s rejection of Tubac’s data.198  Rather, Mexico argues, the 
references in paragraphs 81 and 82 to  "incompleteness" of data were to what Mexico characterizes as 
the deliberate incompleteness of the data that were  presented by Tubac in its questionnaire 
response.199  Mexico offers no explanation of the signi ficance of subparagraph A of paragraph 80.   
7.154  As noted above, this issue is closely related to the factual question as to the scope of the 
investigated product, in particular whether produc ts produced by Tubac other than A-53 and BS-1387 
pipe were covered by the investigation.  We recall in this regard our finding, supra , that as alleged by 
Guatemala, Economía twice during the course of the investigation expanded  the scope of the 
investigated product, the second time by adding – la te in the investigation – certain structural 
tubing.200  These late-added structural tubing products did not correspond to either of the technical 
standards referred to in subparagraph A of pa ragraph 80, that is A-53 or BS-1387.   
7.155  With this background, we examine the meaning of subparagraph A of paragraph 80, i.e., what 
the Final Determination indicates as to whether th e content of this subparagraph was or was not a 
factor that contributed to Economía's decision to rej ect Tubac's data in their entirety.  Here, we note 
first that paragraph 81 refers to the content of pa ragraph 80 in its entirety as the basis for Economía's 
conclusion that "[Tubac's data] cannot be used to  calculate ... a price discrimination margin."  
Paragraph 97, which addresses the use of facts availabl e due to Tubac's data being disregarded, makes 
                                                      
197 First submission of Guatemala, paragraphs 192-194. 
 
198 Mexico response to question 106 (a) from the Panel. 
 
199 Ibid. 
 
200 We recall that the first change, which consisted of an expansion of the range of diameters covered 
by the investigation, is evident on its  face, as the product definition in the preliminary determination refers to a 
broader range of diameters (1/2" to 6") than the Initiation Determination (1/2" to 4") cites.  As this change is not relevant to Guatemala's facts available cl aims, we do not consider it further here. 
 WT/DS331/R 
Page 59 
 
 
  a similar reference to paragraph 80 in its entirety.  T hus, to us it is clear that the role of paragraph 80 
in the Final Determination is to identify problems  that were encountered in Tubac's data.   
7.156  Turning to the specifics of paragraphs 81 an d 82, we note that the "incompleteness" of 
Tubac's data is identified as one of the problems (refe rred to in paragraph 80) that led to the data's 
rejection.  In particular, paragraph 81 states:   "[B]earing in mind the facts found during the 
verification visit to Tubac referred to in point 80  of this Resolution the Ministry cannot use its data ... 
because the information ... is not complete  …" (emphasis added).  Paragraph 82 states that to the 
extent the information was inter alia  incomplete, it was rejected and facts available used instead.   
7.157  In this regard, among all of the subparagraphs of para graph 80, subparagraph A is the one that 
deals clearly and exclusively with the "incompleten ess" of the data base.  The other subparagraphs 
refer to discrepancies  between the data submitted in the questi onnaire response and the data in Tubac's 
accounting records.  Thus, we read the issue iden tified to in subparagraph A as at least being among  
the problems of data incompleteness to  which paragraphs 81 and 82 refer.201   
7.158  Furthermore, concerning the refere nce in subparagraph A to the fa ct that Tubac's data related 
to products corresponding to only two particular technical standards, other parts of the Final 
Determination make clear how central in the inves tigation were the related questions of technical 
standards and the presence or absence of hydrostatic  testing to the question of the product scope.  
First, the Final Determination (at paragraphs 10-30)  presents a lengthy recapitulation of the parties' 
exchanges of views on the scope of the investigated pr oduct.  From that description, it is clear that the 
parties vigorously debated this issue, and in partic ular that they held very different views as to 
whether technical standards, including the requirement  for hydrostatic testing, were determinative as 
to the scope of the product (in particular the suitability  of various dimensions of  pipe and tube for use 
in conduction applications).  Then , at paragraphs 31 and 32, the Final Determination describes the 
scope of the investigated product as being based essen tially on the diameter and wall thickness of the 
product, without regard for the technical standard  to which the product is produced, or the raw 
material from which it is made (hot- or cold-rolled steel  sheet).  Given all of this context, we read the 
characterization in subparagraph A of para graph 80 of Tubac's data as "exclusively " pertaining to A-
53 and BS-1387 pipe, "both subject to hydrostatic testing " as a reference to a problem or a 
shortcoming in the data submitted by Tubac formi ng part of Economía's justification for rejecting 
those data.   
7.159  Finally, we note that Mexico's position on this point appears to have changed over the course 
of this dispute.  While in its answers to questions Mexico argues that Tubac's restriction of its data to 
A-53 and BS-1387 pipe was not a factor th at led Economía to reject those data202, Mexico's first 
submission seems to indicate the contrary.  In partic ular, in that submission Mexico states that "from a 
mere reading of the Guatemalan exporter's replies to the official questionnaire ... it can be seen that 
the exporter did not provide all  the necessary information, nor di d it provide complete, accurate and 
precise information in the course of the investigation".203  Because, as regards the completeness of the 
data provided by Tubac, the "mere reading" of the questionnaire response only indicates that those 
data were limited to A-53 and BS -1387 pipe, we see no other possible basis for Mexico's statement in 
its submission that Tubac did not provide "all the necessary informati on".  Furthermore, later in the 
same submission, Mexico quotes paragraph 80 of th e Final Determination in its entirety (i.e., 
                                                      
201 Nor, apart from the issue of underreporting of discounts, rebates and refunds – which was resolved 
on the spot at verification – do we see in the verifi cation report any reference to incompleteness of data. 
 
202 Response to question 106 (a) from the Panel. 
 
203 First written submission of Mexico at para. 142 (emphasis in original). 
 WT/DS331/R 
Page 60  
 
 including subparagraph A), as the description of  the "inconsistencies" encountered during 
verification
204, and then states that "... the exporter's information was deliberately incomplete ...".205  
7.160  In sum, we find the Final Determination to i ndicate that Tubac's not having provided data on 
any products other than A-53 and BS-1387 pipe was deemed by Economía to be a flaw in Tubac's 
data, in the sense that those data were incomplete  (in the light of Economía's Final Determination as 
to the scope of the investigated product), and that this incompleteness was a factor underlying 
Economía's decision to reject those data.  Although Mexico has argued to the contrary before us, it 
points to no record evidence in support of its argument, and in fact, as noted in the preceding 
paragraph, its position before us on th is point appears to have shifted dur ing the course of this dispute.   
(iv) Substantive aspects of Article 6.8 / Annex II claims  
7.161  We turn now to an analysis of these facts in the light of the provisions cited in Guatemala's 
claim, i.e., Article 6.8 and Annex II.   Given that Article 6.8 requires th at the provisions of Annex II be 
observed in applying Article 6.8, we begin our anal ysis with Annex II.  In particular, we note that, 
concerning the substance of Economía's decision to rej ect Tubac's data and resort to facts available, 
the particular provisions of Annex II cited by Guatemala are paragraphs 3 and 5 of Annex II.  
Concerning paragraph 3, Guatemala argues that th e record evidence contains no indication that 
Tubac's data were not verifiable, or that usi ng these data would have caused "undue difficulties".  
Concerning paragraph 5, Guatemala argues that T ubac fully cooperated in the investigation and 
provided all of the data requested of it by Economía and thus "acted to the best of its ability", and that 
the record does not support a conclusion to the contra ry.  Mexico, for its part, argues that on the basis 
of the problems found at verification, Economía concluded that Tubac had "failed to provide 
necessary information", and had "failed to coopera te" and as a result had "significantly impeded the 
investigation", for both of which reasons Economía's rejection of Tubac's information and resort to 
facts available was fully justified.  
7.162  In the light of these claims and arguments we start our analysis by considering whether the 
record evidence supports a conclusion that Tubac's da ta were not "verifiable", and could not be used 
without "undue difficulties" in the sense of paragra ph 3 of Annex II, and that as Mexico argues, Tubac 
deliberately  submitted biased information such that Economía  was justified in rejecting all of Tubac's 
data.  We also consider whether the basis for this decision is clearly and adequately set forth in the 
Final Determination.   
7.163  We consider the "verifiability" of the data in the sense of paragraph 3 of Annex II to be 
central to this claim.  In this regard, we unders tand Mexico's position to be, in part, that significant 
errors in Tubac's submitted data were found at ve rification, the overall effect of which was to cast 
doubts on the accuracy of the entire data base.  We consider this argument in the light of whether on the basis of the record eviden ce, a unbiased and objective investigating authority could have 
concluded that the individual problems identified in paragraph 80 were such that, in terms of 
paragraph 3 of Annex II, the data as a whole were  unreliable.  We further consider whether the 
evidence could support a conclusion that it would have been "unduly difficult" to use the data 
submitted by Tubac, in the light of the identified prob lems.  In this context we consider the existence 
and nature of these problems, whether corrected data  were available to Economía, and whether there 
is evidence that using any such co rrected data would have delayed th e investigation (that is, whether 
the data were submitted in an "untimely" fashion), or posed any other "difficulties".   
                                                     
 
204 Ibid. at para. 147. 
 
205 Ibid. at para. 148. WT/DS331/R 
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  7.164  In this regard we take the same approach as th e Panel in Egypt – Steel Rebar  in considering 
that paragraphs 3 and 5 of Annex II together set fort h the substantive elements for a justified decision 
to reject a party's information and resort to facts available.206  We also note that the Appellate Body's 
ruling in US – Hot-Rolled Steel is consistent with th at approach, in that the Appellate Body ruled that 
investigating authorities "are not entitled to reject in formation submitted" if that information meets the 
conditions in paragraph 3 of  being "verifiable", "appropriately submitted so that it can be used without 
undue difficulties", and "supplied in a timely fashion"207.  The Panel in US - Steel Plate considered 
that information is verifiable when "the accuracy  and reliability of the information can be assessed by 
an objective process of examination"208.  That Panel also found that the term "undue difficulties" are 
difficulties "beyond what is otherwise the norm in  an anti-dumping investigation", and that an 
investigating authority is required by paragraph 6 of Annex II "to explain the basis of a conclusion 
that information which is verifiable and timely s ubmitted cannot be used in the investigation without 
undue difficulties."209  Finally, we note in connection with th is claim the Panel's characterization as a 
case-by-case question whether a conclusion that some  information fails to satisfy the criteria of 
paragraph 3 and thus may be rejected can justify th e rejection of other information that would, in 
isolation, have satisfied the criteria of paragraph 3210, as we view this as an important element of 
Mexico's argument.   
7.165  Starting with the nature of the identified pr oblems, we recall the record evidence and our 
observations related to each point  listed in paragraph 80:   
• For the product scope of the data provided by Tubac (i.e., the reporting of data only 
on A-53 and BS-1387 pipe), the verification re port and other evidence make clear that 
this was fully known to Economía well before  the verification visit, that Economía 
had confirmed the correctness of the product scope of Tubac's data to Hylsa before 
the verification visit, and that Economía reconfirmed at several points during the 
verification visit the correctness of that pr oduct scope.  The record evidence also 
makes clear that at no point did Economía ever request Tubac to provide data on any other of its products.   
• For discounts, rebates, refunds, and credits
, although some information was omitted 
from the data as submitted, at verification the correct data were obtained and satisfactorily verified on the spot.   
• For data used to calculate constructed values
, there is no reference in the verification 
report to any problems being found, and we thus see no factual basis for the statement 
in the Final Determination that there were any such problems.   
• For data on internal freight,  although the data base as s ubmitted incorrectly attributed 
freight charges to certain transactions, at ve rification the correct data were obtained 
and satisfactorily verified on the spot.   
                                                      
206 Panel Report, Egypt – Steel Rebar  at para. 7.159.   
 
207 Appellate Body report, US - Hot-Rolled Steel  at paragraph 81.  As in the Hot-Rolled Steel  case, the 
fourth condition listed in paragraph 3, that the information is supplied in a medium or computer language 
requested by the authorities, is not at issue in this dispute. 
 
208 Panel Report, US – Steel Plate , at footnote 67. 
 
209 Ibid., at paras. 7.72 and 7.74.  
 
210 Panel Report, US –Steel Plate, at paragraph 7.62.   WT/DS331/R 
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 • For freight on export sales to Mexico
 and freight on third country export sales,  the 
verification report contains no evidence of any error, but instead states that differences arose because the verification team  verified these elements on the basis of 
samples rather than the entire data base.   We thus see no factual basis for the 
statement in the Final Determination th at there were any such problems.   
• For adjustments for insurance
, there is no reference in th e verification report to any 
problems being found, and we thus see no factual basis for the statement in the Final Determination that there were any such problems.   
• For adjustments for physical differences
, although certain discrepancies were found, 
at the request of the verification team T ubac recalculated the adjustments on the basis 
of the cost data that had been verified in the context of constructed value.  Thus, the 
record indicates that at verification, the correct data were obtained at the express 
request of the verification team.   
• For Tubac's indicators , the verification report indicates that of its own initiative Tubac 
informed the verification team that it had discovered errors in the production  data it 
had reported, and that Tubac presented th e verification team with worksheets and 
supporting documentation that resolved the e rrors to the satisfaction of the team.  
Concerning sales , the verification report characterizes some of the differences as 
"poco significativas", and in respect of the other differences, because these were 
encountered in the verification of the "Prueb a de totalidad" they appear to have been 
related to the underreporting of discounts, reba tes, and refunds referred to above, and 
to have been resolved in that connection,  as the correction of these data led to the 
"satisfactory" verification of the "Prueb a de totalidad".  Concerning inventories , the 
verification report indicates that differen ces were found in the data on inventory 
volume, but not value.  Concerning capacity , the verification report indicates that 
some differences were found, but that the co rrect capacity figures were calculated at 
verification. 
7.166  As indicated in the foregoing summary, there is  no record evidence of the existence of any 
problem in respect of the data on constructed value , on freight charges for export sales to Mexico or to 
third countries , or on adjustments for insurance .  Thus, the record evidence indicates that these data 
were fully verified without any difficulties or qu estions, from which we conclude that they were 
"verifiable" in the sense of paragraph 3 of Annex II.   
7.167  For the price-related data where discrepancies were found  (i.e., for discounts, rebates and 
refunds, for internal freight, and for adjustments for physical differences)  the record evidence 
indicates that corrected data were obtained and verifi ed on the spot.  We conclude from this that these 
data as well were "verifiable" because they were in fact verified.  The further question becomes 
whether it would have been "unduly difficult" fo r Economía to have used these data, including 
whether the corrected data became available so late  in the investigation that using them would have 
delayed the investigation.  There is nothing in the record evidence that indicates that there would have 
been any difficulty in using any of the individual corrected data elements obtained at verification, nor 
is there any such statement in the Final Determina tion.  Indeed, the verification report itself states in 
respect of at least one of these data elements (the internal freight adjustment for domestic sales) that 
Economía would correct the data base provided by Tubac on the basis of the corrections that had been obtained and verified during the verification visit.
211  As for timeliness, there is no indication in the 
Final Determination that any data co rrections were made after the verification visit, or that there was 
                                                      
211 GTM-15/MEX-12 at pages 7-8.  
 WT/DS331/R 
Page 63 
 
 
  any issue of shortness of time available to Econom ía to perform the dumping calculations for the 
Final Determination.  Indeed, given that the ve rification visit took place in June 2002, Economía had 
had the corrected data in its possession for more than  six months by the time the Final Determination 
was issued in January 2003.   
7.168  For the discrepancies in the data on Tubac's economic indicators  (i.e., for production, sales, 
inventories, and capacity), here as well the record evidence indicates that corrected data were obtained 
at verification and verified on the spot.  Thus, we c onsider that the record ev idence indicates that these 
data were "verifiable" because they were in fact ve rified.  Nor do we find an y basis to conclude that 
even if, hypothetically, some of the data on the economic indicators could be considered "unverifiable", this would have made it "unduly di fficult" for Economía to have used the verified 
pricing data to calculate the dumping margins.  Th is is because we do not see a particular analytical 
connection (nor, more importantly, does the Final Determination identify any) between data on the 
company's production, inventories and capacity and the pricing data that would be used to calculate 
dumping margins.     
7.169  Concerning the product scope of the data submitted
 by Tubac, given our finding that the 
record indicates that Economía faulted Tubac fo r having provided data only on A-53 and BS-1387 
pipe, we consider whether there is factual eviden ce that Economía ever specifically requested any 
pricing data from Tubac (such as would be necessar y to calculate dumping margins) on products other 
than these,  either in the questionnaire or at any point thereafter.  We find no record evidence of any 
such request, nor does Mexico argue that any such request was made.212  In this context we emphasize 
that whatever issues ther e may have been at various points dur ing the investigation regarding product 
scope (and we note Tubac's requests for clarifica tion on this point from the very outset of the 
investigation), the facts of record show that Tub ac was fully transparent thr oughout the investigation 
as to the scope of the products for which it reported data and its reasons for doing so.  There is no 
evidence to the contrary, and indeed Mexico conf irmed Tubac's transparency in this regard in 
response to questioning by the Panel.213  Nor did Economía, before the final phase of the 
investigation, raise any issue in this respect.214  To the contrary, Economía itself on numerous 
occasions confirmed the correctness of the scope of the data provided by Tubac, including during the 
technical meeting with Hylsa and at verification (where the verification team at several points 
identified Tubac's product codes that were covered by the investigation).  Thus the evidence is 
unequivocal that Economía was fully aware of the pr oduct scope of the data provided by Tubac, and 
never identified to Tubac that there was any problem in  this regard, or sought da ta on other products.   
7.170  We now consider whether the inclusion of only two specifications of pipe in Tubac's data 
base, as referred to in subparagraph A of paragra ph 80, as such could have rendered that data base 
"unverifiable".  We conclude that this scope lim itation in itself could not have done so, because only 
if there were record evidence of other problems with the data contained in the data base c ould the data 
base overall potentially become unusable in respect of th e products it included.  In this connection, we 
recall our conclusions in  paragraphs 7.166-7.168, supra , that the evidence does not support a finding 
that the specific problems in respect of certain data elements as refe rred to in the other subparagraphs 
                                                      
212 Mexico states in response to question 106 (d)  from the Panel, that Economía's only request to 
Tubac for information on the structural  tubing at issue in this dispute was via the information request to which 
Tubac responded on 17 September 2002.  (Exhibit GTM-22)  We note, however, that this information request 
had nothing to do with price data, and instead went to the question that had been raised at the public hearing as to whether the structural products should be added to the scope of the investigation. 
 
213 Response to question 106 (c) from the Panel. 
 
214 Response to question 106 (d) from the Panel. WT/DS331/R 
Page 64  
 
 of paragraph 80 rendered those partic ular data elements unverifiable, or that using them would have 
been unduly difficult for Economía.   
7.171  We next evaluate whether in spite of the "ver ifiability" of these data ite ms individually, there 
is record evidence that supports Mexico's position that these problems taken together so undermined 
the credibility and reliability of the data base as a w hole as to render that data base unusable.  We do 
not consider that an unbiased and objective inves tigating authority could have concluded that the 
problems listed in subparagraphs B through G of the Final Determination, when evaluated in the light 
of the verification report, rendered the data base as a whole unreliable.  In this regard, we recall that 
for a number of the problems referred to in these subparagraphs , we have found no
 record evidence 
whatsoever that the cited problems even existed.  For the rest, it appears from the verification report 
that the errors were corrected on the spot without difficulty.  We see no factual basis for the implicit 
characterization in the Final Determination that th ese errors were pervasive and fundamental, such 
that they would affect the overall credibility of the da ta base.  Rather, in the light of the verification 
report, it appears to us that Economía applied an  unacceptably demanding standard, namely that no 
error encountered in the data base provided by Tubac, no matter how small, could or would be 
corrected, even where correct data were obtained and verified during the verification visit.   
7.172  This brings us to a consideration of whet her, as claimed by Guatemala, Economía acted 
inconsistently with para graph 5 of Annex II.  In particular, we have found above that the record 
evidence does not support a conclusion that the data  submitted by Tubac, in spite of errors or 
discrepancies as reflected in the verification report,  were unverifiable in the sense of paragraph 3 of 
Annex II.  We now take up the question of whet her the evidence supports a conclusion, as argued by 
Mexico, that the identified errors and discrepancies were the result of deliberate action by Tubac to 
provide incorrect and biased information, and that T ubac thus did not cooperate.  In this context, 
Guatemala argues that Tubac "acted to the best of its ability" in the sense of paragraph 5 of Annex II, 
and that Economía therefore acted inconsistently  with that provision in rejecting Guatemala's 
information.  Mexico disputes that Tubac acted to the best of its ability and argues that to the contrary, 
Economía "considered that Tubac changed the physical  difference adjustment figures in order to bias 
the dumping margin calculation to its advantage"215, and that Economía in fact "considered whether 
the exporter acted to the best of its ability and … found evidence that not only had the exporter not 
acted to the best of its ability, but it done everythi ng it could to slant or hide information needed for 
the investigating authority's analysis, so the inves tigating authority disregarded the information from 
the Guatemalan exporter".216 
7.173  We find useful guidance for our examination of this aspect of Guatemala's claim in previous 
disputes that have considered paragraph 5 of Annex II.  The Appellate Body in US – Hot-Rolled Steel  
considered that "investigating authorities are entitled to  expect a very significant degree of effort – 'to 
the best of their abilities' – from investigated exporte rs.  At the same time, however, the investigating 
authorities are not entitled to insist upon absolute standards or impose unreasonable  burdens upon 
those exporters".217  The Panel in US – Steel Plate  stated that "paragraph 5 can be understood to 
highlight that information that satisfies the requireme nts of paragraph 3, but which is not perfect, must 
nonetheless not be disregarded".218    
                                                      
215 Mexico's response to question 179 from the Panel. 
 
216 Mexico's response to question 182 from the Panel. 
 
217 Appellate Body Report on US - Hot-Rolled  Steel,  paragraph 102. 
 
218 Panel Report on US – Steel Plate , paragraph 7.65. 
 WT/DS331/R 
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  7.174  Given the nature of the parties' respective arguments as to whether or not Tubac acted to the 
best of its abilities we consider first whether as a factual matter there is evidence in the record 
supporting Mexico's characterization that the information provided by Tubac was deliberately  
misleading.   
7.175  We first return to the question of the product sc ope of the data reported by Tubac, which is 
relevant here to the extent that part of Economía 's decision to resort to facts available may have 
hinged on an assessment that Tubac failed to act "to the best of its ability" in the sense of paragraph 5 
of Annex II by not providing data on any ot her products than A-53 and BS-1387 pipe.219  We view 
paragraph 1 of Annex II as relevant  context for answering this question, in that this provision makes 
clear that it is the investigating authority's responsib ility in the first instance to inform an interested 
party of the precise information that it requires of that party (i.e, the "necessary information" in the 
sense of Article 6.8.)  We note here that being fu lly aware from the outset as to the product scope of 
the data provided by Tubac, and not having request ed Tubac to provide data on any other products, 
Tubac's not having provided such data clearly could not be considered a failure on its part to have 
acted to the best of its ability in this respect.   
7.176  Concerning Mexico specific arguments before us on this issue, we recall that at our second 
substantive meeting, we questioned Mexico in detail about the problems that it argued justified 
Economía's decision to reject all of Tubac's data.  Mexico stated that at verification, Economía had 
discovered large problems in Tubac's selection of the product codes that it had included in its data 
base.  We asked where in the Final Determina tion this problem was identified and addressed, and 
Mexico identified subparagraph F of  paragraph 80.  We then asked Mexico to explain the connection 
between this subparagraph, which re fers to adjustments for insuran ce and for physical differences, and 
the issue concerning Tubac's selection of pr oduct codes to include in its data base.220  Mexico 
responded that the discrepancies in the data on adjust ments for physical differences were so large that 
Economía had no certainty either as to the adjust ments themselves or as to the selection of product 
codes for normal value that were used to compar e with to the product codes exported to Mexico, 
given that the purpose of adjustments for physical di fferences is to "standardize" the prices of similar 
but non-identical products being compared, by  neutralizing the differences between them.221   
7.177  We find it surprising, in the light of Mexico's in sistence in its oral answers to Panel questions 
during the second substantive meeting with  the Panel that this issue was the  central problem 
encountered during Tubac's verification, that Mexico first raised it only at that late stage of this 
dispute.  Indeed, neither of Mexico's written submi ssions and neither of its prepared oral statements 
(including at the second substantive meeting with th e Panel) makes any reference to this problem.  
The first written reference to it before us app ears in Mexico's written responses to our written 
questions raised in connection with the second me eting.  (These written answers make the same 
arguments as were made in Mexico's oral responses during the meeting.)   
7.178  More importantly, we find no reference to this i ssue in the Final Determination.  Indeed, the 
only reference in the Determination to discrepan cies in the physical difference adjustments is a 
sentence fragment, stating only that certain differe nces were found, contained in a subparagraph of 
paragraph 80 that also covers insurance adjustments.   There is no link in the Determination, in that 
subparagraph or elsewhere, of the physical diffe rence adjustments issue with doubts about the 
                                                      
219 In our view, the Final Determination could be read to imply this, although Mexico's arguments 
before us concerning Tubac's alleged fa ilure to act to the best of its ability are focused on issues other than the 
product scope of Tubac's data. 
 
220 Question 183 from the Panel.   
 
221 Mexico's replies to questions 132 and 183 from the Panel. WT/DS331/R 
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 selection of product codes included in the data base.  Indeed, the only reference at all in the Final 
Determination to any issue relating to product covera ge of the data base appears in subparagraph A of 
paragraph (which has nothing to do with adjustment s for physical differences).  Furthermore, as noted 
above, (paragraph 7.152) Mexico h as argued before us that the issu e identified in subparagraph A was 
not among the problems on which Economía based its decision to reject Tubac's data.   
7.179  Nor do we see any reference to any problem re lating to product codes in the verification 
report.  That is, we find no factual support in the ve rification report for Mexico's  implication before us 
that Economía did not have full knowledge about the entire range of  products produced by Tubac, 
either about their physical characteristics or about  their product codes, and thus had no basis on which 
to judge whether Tubac had included all of the releva nt product codes in its data base.  Indeed, as set 
out in paragraphs 7.88-7.91, supra , the verification report indicates the contrary, starting with its 
section entitled "Códigos de produc to" which begins on page 4.
222  We recall that this section states 
that Tubac presented a detailed description of its product codes, including a table containing the 
description and structure of each of those codes.  The report then describes in detail the structure of 
the product codes, indicating that the different dig its in each 9-digit product code respectively identify 
the product family, the presentation (shape, finish, and whether or not threaded), the calibre and 
weight, the dimensions in inches, and the length, of  the product.  The report further states that Tubac 
presented the verification team with a list of all of  its product codes, covering all investigated and 
non-investigated products.  From this it appears that the verification team had, via the lists of product 
codes provided, a complete physical description of all products produced by Tubac.  Furthermore, we 
recall that the verification report indicates that the issue of which of Tubac's product codes were and 
were not covered by the investigation was extensivel y discussed at the verification, in connection with 
the "Prueba de totalidad" and that the corresponding da ta were verified with no discrepancies found.   
7.180  In addition, according to the record evidence, th e verification visit was not the first time that 
Economía had received information from Tubac as to th e product codes of all of its products.  To the 
contrary, as indicated in the report on Economía's technical meeting with representatives of Hylsa 
following the Preliminary Determination (i.e., befo re the verification visit to Tubac), Economía 
informed Hylsa that it had received and studied the full list of Tubac's product codes, and had 
concluded that "only 32 of them" corresponded to the investigated product.223  Furthermore, the fact 
that all of the data reported in Tubac's qu estionnaire response corres ponded to two technical 
specifications, with well defined physical and di mensional parameters, would seem as a matter of 
logic to limit the possibility that products with enormously different physical characteristics could 
have been compared in the data base.   
7.181  Nor do we see a necessary logical connecti on, as asserted by Mexico, of discrepancies 
between accounting records and questionnaire respon ses for adjustments for physical differences, to 
the physical similarity or dissimilarity of the products involved.  For example, we can imagine a 
situation where a questionnaire response did in f act identify and compare the most similar products, 
but deliberately or inadvertently reported incorrect information as to the co sts associated with the 
physical differences between those products.  Th ese inaccuracies in the ad justments for physical 
differences would have nothing to do with the selecti on of the similar products, or with the overall 
scope of the data base, but instead would have to  do with inaccuracies in the data reported.   
7.182  In short, Mexico's argument before  us on this point seems to be a post hoc  explanation of 
Economía's decision to reject Tubac's data, which neither appears in Economía 's Final Determination 
nor finds factual support in the record evidence underl ying that Determination.  In other words, we 
                                                      
222 GTM-15/MEX-12. 
 
223 Exhibit GTM-11(B). WT/DS331/R 
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  see no factual basis in the investigation or justif ication in the Determination for this argument by 
Mexico.   
7.183  As for the question of whether the record otherw ise contains any evidence that Tubac acted in 
a deliberately misleading manner in terms of the da ta it provided in its questionnaire response, at 
verification, or at any other point, we see none, a nd Mexico points to none.  Indeed, given that 
according to the verification report Tubac itself brought certain errors in its data base to the attention 
of the verification team, and ot herwise is described in that report as providing all data and 
documentation requested by the verification team wit hout delays or other problems, we consider that 
an unbiased and objective investigating authority coul d not conclude on the basis of the verification 
report that Tubac had failed to cooperate in the mann er asserted by Mexico  As a result, we also find 
no basis in the record for Mexico's assertion that  Tubac significantly impeded the investigation. 
7.184  For the foregoing reasons, we conclude that  Economía acted incons istently Mexico's 
obligations with paragraphs 3 and 5 of Annex II and thus Article 6.8 when it decided to reject in their 
entirety the data that Tubac had submitted a nd to rely instead on facts available.   
(v) Procedural aspects of Article 6.8 / Annex II claims 
7.185  Guatemala also raises procedural claims related to Economía's resort to facts available.  In 
particular, Guatemala claims that Economía neve r informed Tubac that Economía had decided to 
reject Tubac's data in their entirety, and neve r gave Tubac an opportunity to provide further 
explanations, and that Mexico thereby violated pa ragraph 6 of Annex II.  Mexico disagrees, arguing 
that the verification report itself both constituted the required notification to Tubac as to the rejection 
of its data, and provided the required opportunity for Tubac to present further explanations.  The 
questions before us in this claim thus are prim arily factual, namely whether Economía informed 
Tubac that its data were being rejected, and wh ether Economía provided Tubac with the opportunity 
to present further explanations.  As Mexico's defenc e of this claim is based on the verification report, 
we return to that document to see whether it supports Mexico's argument.   
7.186  Starting with Economía's decision to reject T ubac's data, we recall that paragraph 6 of 
Annex II requires that the party supplying informa tion that "is not accepted" by the investigating 
authority must be "informed forthwith of the reasons  therefore" and given "an opportunity to provide 
further explanations within a reasonable period".  The nature of this obligation is well settled224, and 
the parties to this dispute do not disagree in this  regard.  Rather, their disagreement centres on whether 
– as a factual matter – Economía provided the requis ite notification and opportunity to submit further 
explanations within the meaning of Annex II.   
7.187  We note that Mexico argued before us that th e verification report constitutes only the factual 
account of what happened at verification, and do es not constitute or contain any conclusions or 
analysis or evaluation on the part of Economía.  We  asked Mexico to reconcile this argument with its 
position that via the verification report Economía fulfi lled the requirement in Annex II, paragraph 6 to 
inform Tubac that its data were being rejected.  Mexico replied that there was no contradiction 
between these characterisations, because the verifica tion report indicated to Tubac the discrepancies 
that were found at verification, and stated the possi bility that the Final Determination could be made 
on the basis of facts available.  Mexico stated in  particular that "given the discrepancies in the 
information submitted of which Tubac was aware, th ere is a sound basis for inferring that Tubac knew 
                                                      
224 See Panel Reports Argentina – Ceramic Tiles , e.g. at paragraph 6.21, and Egypt – Steel Rebar , e.g. 
at paragraph 7.262. 
 WT/DS331/R 
Page 68  
 
 about this situation"
225 of rejection of its data and reliance on f acts available.  Mexico also stated that 
"although the verification report did not contain a determination in the sense that facts available were 
indeed to be used , it did include a clear warning that their use was a possibility".226 (emphasis added) 
7.188  We do not find this argument convincing.  To the contrary, we see the quoted statements as an 
admission by Mexico that Economía never directly or  explicitly informed Tubac that its data were  
being rejected.  Indeed,  the "warning" that Mexico refers to is framed in general language that seems 
to be standard for verification reports produced by  Economía, given that the same language appears at 
the end of Economía's report on the verification of Hylsa.227  The language reads:  "On the strength of 
the results obtained in the course of resolving this matter and on the basis of the information in the 
administrative file of the case, the Ministry may issu e final conclusions based on the facts available to 
it".  All that this language says is that final results may  be based on facts available, not that a decision 
has been taken in the particular case that they will  be.  We view paragraph 6 of Annex II to require 
not a general statement of the possibility that facts av ailable could be used (which possibility in fact 
exists in all anti-dumping investigations), but rather an affirmative and direct notification to the party 
concerned that in the particular case a decision has b een made to reject its information, along with a 
statement of the reasons for that decision.  A dete rmination of this importance in an investigation 
cannot be left to the party in question to infer from a document that Mexico itself characterizes as not  
containing analysis or conclusions, but just facts.  We thus find that Economía did not abide by the 
requirements of paragraph 6 of Annex II to inform Tubac that it had decided to reject Tubac's data, 
and to explain the reasons for that decision.   
7.189  We next consider whether Economía gave Tubac an opportunity to provide further 
explanations following Economía's decision to reject  its data, as also required by paragraph 6 of 
Annex II.  Here again, Mexico refers to the verifi cation report – in particular to the five-day period 
allowed in the verification report for any comment s on the report's contents – as constituting this 
opportunity228, and argues that Tubac submitted no comments and otherwise took no corrective action 
in respect of the problems that had been found at verification and described in the report.229  Given, as 
discussed in detail above, that the verification repor t did not inform Tubac that its information was 
being rejected, and to the contrary indicated that  essentially all of the problems encountered were 
resolved on the spot at verification, we fail to see on what basis Tubac could have supposed that any 
further corrective action was expected or required by  Economía.  Furthermore, and in any case, in the 
light of our finding that the verification report doe s not satisfy the requirement in paragraph 6 of 
Annex II to notify the interested party of the decision to reject its information and of the reasons 
                                                      
225 Mexico's answer to question 178 from the Panel.  Mexico's second written submission, para. 123 
and 125;  Mexico's second oral communication, paras. 25, 26 and 31;  Mexico's responses to questions 111 (a) 
and (b) from the Panel. 
 
226 Ibid. 
 
227 Exhibit GTM-24, at page 14. 
 
228 Mexico's answer to questions 11 (b) and 182 from the Panel.   
 
229 Mexico argues in its second written submission (at paragraph 110) that "[I]f Tubac, although well 
aware that there were differences between the data it ha d submitted to the investigating authority and the data 
obtained during the on-site investigation, did nothing to clarify at all the information, it is logical that the 
investigating authority should proceed" by rejecting the information.  Mexico further argues in the same 
submission (at paragraph 125) that "... as the report of th e verification visit shows, th ese problems were pointed 
out to Tubac's representatives, and it was the exporters that took no remedial action to bring the information into conformity with the purpose of its bein g used by the investigating authority". 
 WT/DS331/R 
Page 69 
 
 
  therefor, that report by definition also could not satis fy the requirement to provide the interested party 
an opportunity to submit further explanations following the decision.   
7.190  On the basis of the foregoing considerations, we  find that Economía acted inconsistently with 
paragraph 6 of Annex II, and thus Article 6.8, by failing to inform Tubac that its data were being 
rejected and of the reasons for that decision, and by failing to provide Tubac with an opportunity to 
submit further explanations.   
(vi) Annex II, paragraph 7 – "special circumspecti on" regarding information used as facts 
available 
7.191  Guatemala  claims that Economía did not use special circumspection when deciding to base 
the dumping determination, in particular as to nor mal value, on the information provided in the 
application.  According to Guatemala, the problems that made this information an insufficient basis 
for initiation, which were not rec tified or addressed at the final phase, made this information even 
more inadequate as the basis for the final determination of dumping.   
7.192  Mexico  argues that the information in the petition constituted an adequate and reliable basis 
for determining normal value, given that Economía had evaluated its accuracy and adequacy at the 
time of initiation.  In this context, concerning th e data on imports that were used as the basis for 
export prices in the Final Determination, Mexico asserts that these data were taken from the import 
"pedimentos" obtained from importers and thus were fully accurate and comprehensive.  Mexico also 
argues in general that once Economía determined th at it would rely on facts available, it "sought to 
corroborate the information with other independent sources, such as the SICMEX import statistics, the information provided by customs agents, and the in formation obtained from other interested parties 
during the investigation".
230  Mexico further argues that Tubac fa iled to cooperate in the sense of the 
last sentence of paragraph 7 of Annex II, providi ng more justification for Economía's use of the 
information contained in the application as facts available. 
7.193  We recall our findings, supra , that Economía acted inconsistent ly with Article 5.3 and thus 
Article 5.8 by initiating the investigation on the basis of evidence pertaining to normal value (i.e., the 
invoice and the price quote) that was insufficient due to a number of specific shortcomings which in 
our view are obvious on the face of that evidence.  We see no factual basis in the record, and Mexico 
points to none, in support of its argument that befo re using that same normal value information as the 
basis for the final dumping determination, Economía took any steps to verify its accuracy.  Nor do we 
see any evidence, and Mexico points to none, that Economía sought to ascertain the 
representativeness of that information in respect  of the products and period covered by the 
investigation, or to adjust it in any way to addr ess the problems that we identified in the context of 
Guatemala's claims related to the initiation.  To th e contrary, the Final Determination makes clear that 
the information as submitted by Hy lsa was accepted and used essentia lly "as is" by Economía as the 
basis for normal value in the final dumping calcul ations – the invoice for all galvanized products 
within the scope of the investigation and the pr ice quote for all black products within that scope.231  In 
                                                      
230 Mexico's response to question 182 from the Panel. 
 
231 In particular, paragraph 109 of the Final Determination describes the invoice, and indicates that 
Economía converted the prices reflected therein from  quetzales using the Bank of Guatemala's published 
exchange rate for the date of the invoice.  Paragraph 11 0 describes the price quote, and indicates that Economía 
converted the prices from quetzales on the same basi s.  Paragraph 111 indicates that Hylsa provided the 
methodology and factors for converting the per piece pric es in the invoice and price quote to a per kilogram 
basis.  Paragraph 112 stat es that Economía "accepted the informati on supplied by the applicant, in accordance 
with Article 5.2 of the Anti-Dumping Agreement  and Section XI of the FTA Regulations".  Paragraph 114, the 
sole paragraph appearing under the heading "Ajustes al valor normal", indicates th at Economía adjusted the 
prices in the invoice for credit, for th e period specified in the invoice, on the basis of a methodology provided by WT/DS331/R 
Page 70  
 
 other words, the Final Determination makes clear th at the normal value information used for the final 
dumping determination was identical to that used for initiation, and thus included, unaddressed, all of 
the flaws and shortcomings that rendered that info rmation insufficient for purposes of initiation.   
7.194  Of particular relevance in this regard is th e very narrow product coverage of the invoice and 
price quote compared with the overall product scope of  the investigation.  Not only was this problem 
still present and unaddressed by Economía at the time of  the Final Determination, but in fact it had 
become more pronounced given the expansion of th e product scope to include certain structural 
tubing as well as products in the 4"-6" size range.  Th at is, because of the expansion of the product 
scope, the invoice and price quote represented an even  narrower subset of the total covered products 
at the final phase of the investigation than had been  the case at the time of initiation.  Yet, as 
discussed above, there is no evidence that Econom ía took any steps at the time of the Final 
Determination to ascertain whether the pricing info rmation contained in those two documents could 
be viewed as representative inter alia  of Guatemalan prices for the broader product range covered by 
the investigation at that point, including the added products.
232   
7.195  Here, we recall our agreement with the prin ciple asserted by Mexico (in defence of 
Economía's reliance on the invoice and price quote at  the initiation stage) that the standard of 
evidence for initiation is lower than that for a preliminary or final determination233 (although, as noted 
above234, we disagree with Mexico that a "mere indication" of alleged dumping is sufficient at the 
initiation stage).  We view this defence by Mexico in the context of Guatemala's initiation claim as an 
implicit acknowledgement that the invoice and price quote would not have been a sufficient basis for 
a final determination, and we do not see how, given the absence of any eviden ce in the record that 
Economía took any steps to ascertain the accuracy and representativeness of these documents at the 
final stage of the investigation, this argument can be reconciled with Mexico's  apparent position in the 
context of the Final Determination that the i nvoice and price quote were sufficient "as is".  
7.196  We further note Mexico's argument that "the l ast sentence of paragraph 7 of Annex II of the 
AD Agreement says 'It is clear, however, that if an  interested party does not cooperate and thus 
relevant information is being withheld from the aut horities, this situation could lead to a result which 
is less favourable to the party than if the party did cooperate', which is exactly the way the  
investigating authority proceeded (emphasis added).  In our view, Mexico's reliance on the argument 
that Tubac "failed to cooperate" in the sense of para graph 7 of Annex II and that the last sentence of 
                                                                                                                                                                     
Hylsa.  Thus, the Final Determination is clear that the normal value evidence used by Economía was that 
provided in for purposes of initiation (i.e., the invoice and price quote), and that the only adjustment of any kind 
was the same adjustment to the invoice prices for credit that was made at the time of initiation.  There is no 
reference to any other adjustment or verification process undertaken by Economía in respect of this evidence before it was used in the final dumping calculations.  Finally, we note that the above description in the Final 
Determination of this evidence and the sole adjustment th ereto (the credit adjustment to the invoice) is virtually 
identical to the corresponding drafting in the Initiation De termination (see Exhibit GTM-4 at paragraphs 61-67).  
We view this fact as further confirmation that the normal value information used for the final determination of 
dumping was identical to that used for purposes of initiation. 
 
232 We note here that Mexico has argued before us that Economía found these products to be 
"competitive" and in some cases substitutable.  While this may have been the case (an issue that is not in any 
case before us), the competitiveness or substitutability of a given product with another is not informative as to their relative or absolute prices. 
 
 
233 See paragraph 7.22, supra , and e.g., first written submission of Mexico at paragraph 33:  "[Since] 
the evidence submitted with the application does not have to be of the quality and quantity needed to support a 
determination of unfair practice and the application of an anti-dumping duty, but to initiate an investigation, the 
information in the application need be no more than a mere indication of ‘alleged dumping’."  
234 See paragraph 7.22, supra. WT/DS331/R 
Page 71 
 
 
  that provision therefore justified Economía in relying on the normal value information from the 
application constitutes an acknowledgement by Mexico that Economía used that information for the 
purpose of arriving at a "less favourable" result for Tubac than otherwise would have been the case235, 
and that it did not evaluate that information on its  own merits for representativeness and sufficiency.   
7.197  On the basis of the foregoing considerations, we  find that Economía failed to use "special 
circumspection" in relying on th is unadjusted evidence for its Fi nal Determination, as required by 
paragraph 7 of Annex II.  Here we agr ee with the observation of the panel in Egypt – Rebar that the 
provisions of Annex II have to do with ensuring the reliability of the information used by the 
investigating authority.236  Furthermore, as discussed in the preceding section, we do not see any 
evidence in the record to support Mexico's ar gument that Tubac failed to cooperate in the 
investigation and thereby significantly impeded the investigation as asserted by Mexico.  Thus, even 
if arguendo (as Mexico implies but which, as noted, is not an issue raised in this dispute) the last 
sentence of paragraph 7 permits a de liberate use of so-called "adverse facts available" in the case of 
non-cooperation by an interested party, that sentence would not apply to the factual situation at hand and thus is not relevant to the case before us.  On the basis of these considerations, we find that 
Economía acted inconsistently with  paragraph 7 of Annex II and Article 6.8 because in applying as 
facts available the normal value evidence that was pr ovided by the applicant and used in Economía's 
initiation decision it failed to use "special circumspection".    
(vii) Other claims pursuant to Article 6  
 
7.198  Guatemala claims that Economía's rejection of Tubac's data and resort to facts available also 
violated Articles 6.2, 6.4, 6.7, 6.9, and 6.13.  Regarding Articles 6.2 and 6.4, Guatemala argues that 
by deciding only at the very end of the investigation to resort to facts available, Economía denied Tubac the opportunity to see all of the relevant info rmation, to prepare presentations thereon, and thus 
to fully defend its interests.  Regarding Article 6.7, Guatemala argues that the verification report does 
not correspond with the description of the verification results that appears in the Final Determination, 
and that the Mexico points to no other document of record referring to the a lleged flaws uncovered at 
verification, and that therefore Economía did not co mply with its obligation to inform Tubac of the 
results of the verification.
237  Regarding Article 6.9, Guatemala argues that Economía did not disclose 
the essential fact of the resort to facts available prior to making its Final De termination.  Regarding 
Article 6.13, Guatemala argues that Economía did not  take due account of difficulties experienced by 
Tubac in supplying the re quested information.   
7.199  Mexico argues that Guatemala has not established a violation of any of these provisions.  
Regarding Articles 6.2 and 6.4, Mexico argues that  Tubac had full opportunity to present information 
and argument in respect of the inclusion of certain structural tubing within the product scope.  Regarding Article 6.7, Mexico argue s that the requirement is to disclose the factual results of the 
verification, not the analysis of those facts.  Rega rding Article 6.9, Mexico argues that the decision to 
resort to facts available is not an "essential fact " subject to the disclosure requirement of that 
                                                     
 
235 In the context of the last sentence of paragraph 7,  prior panels and the Appellate Body have used the 
term "adverse facts available" to describe the situation wh ere an investigating authority applies facts available in 
such as way as deliberately to give rise to a "less fa vourable" outcome for a non-cooperating party than would 
have been the case had that party cooperated.  We emphasi ze here that Guatemala has not raised, and we thus do 
not express any view as to, the issue of whether the final sentence of paragraph 7 of Annex II permits such 
deliberate use of "adverse facts available" where a party has failed to cooperate with an investigating authority. 
 
236 Panel Report on Egypt – Steel Rebar , at paragraph 7.154. 
 
237 Guatemala also argues that its Article 6.7 claim is subsidiary to its Article 6.8 claim, such that the 
Panel would only need to reach it in the event it found no violation of Article 6.8.  (Response of Guatemala to 
question 103 from the Panel, at para. 110.) WT/DS331/R 
Page 72  
 
 provision.  Regarding Article 6.13, Mexico does not elaborate a specific argument, but instead relies 
on its rebuttal to the Article 6.8 claim.    
7.200  The arguments of the third parties related to this issue are su mmarized at paragraph 7.110, 
supra . 
7.201  We see Guatemala's additional Article 6 claims that relate to facts available as covering 
essentially the same substantive i ssues as are covered by Guatemala's claims under Article 6.8 and 
Annex II.  In the light of our findings that Econom ía acted inconsistently with both substantive and 
procedural requirements of Article  6.8 and Annex II in deciding to reject Tubac's information and 
resort to facts available, we see no need to reach these additional facts available claims under 
Article 6, and thus make no findings thereon.   
2. Claims pursuant to Article 2 
7.202  Guatemala raises other claims relating to the determination of dumping, alleging in particular 
that Mexico violated Articles 2.1, 2.4 and 2.6 as a result of expanding the scope of the investigation to 
include products in the 4"-6" diameter range, and to include certain structural tubing.  In particular, 
Guatemala argues in respect of Article 2.1 that Economía did not obtain information on these added 
products, and did not calculate dumping margins for th em, so that it did not establish the existence of 
dumping in respect of the "product as a whole" as required by Article 2.1.  Concerning Article 2.4, Guatemala argues that this provision requires a "f air comparison" between normal value and export 
price for the investigated product, and that it is not possible to realize such a fair comparison without 
pricing information for all of the products cove red by the investigation.  Thus, according to 
Guatemala, this claim is closely related to its Ar ticle 2.1 claim.  Regarding Article 2.6, Guatemala 
argues that Economía acted inconsis tently with this provision by de fining the investigated product and 
the like product at initiation, and then failing to maintain these definitions over the course of the 
investigation.  Guatemala notes that while Article 2.6 does not prohibit changes to the definitions of 
the investigated product or the like product, in this case Mexico changed the definitions without 
positive evidence and without an impartial a nd objective examination of the facts.   
7.203  Mexico responds that none of these claims ha s merit.  According to Mexico, all of the 
products included in the scope of the investigati on as of the Final Determin ation constituted a single 
investigated product, and therefore the investigatio n was comprehensive in respect of that product, 
and the comparisons made were fair.  Mexico also  notes that Guatemala acknowledges that Article 2.6 
does not prohibit changes to the scope of the inv estigated product or the like product, and further 
argues that the Anti-Dumping Agreement  contains no rules on the establishment or definition of the 
investigated product.  Thus, Mexico maintains, Ec onomía was in full compliance with its obligations 
under the Agreement in respect of the scope of the investigated product over the course of the 
investigation.   
7.204  The arguments of the third parties related to this issue are summarized at paragraphs 7.336- 
7.338, infra . 
7.205  All of these claims have as their factual basis the two expansions to the scope of the 
investigated product.  We have found, above, that in deciding to reject Tubac's data and resort to facts 
available, and in its selection of the normal valu e information to use as facts available, Economía 
acted inconsistently with Annex II and Article 6.8.  We recall that these findings are related in part to 
the expansions of the scope of the investigated  product during the course of the investigation.  
Furthermore, and in any case, as a result of these fi ndings, Economía's final de termination of dumping 
as a whole – in respect of the entire expande d product scope – was inconsistent with the Anti-
Dumping Agreement .  On this basis we do not consider it necessary to, and thus do not, make findings 
on these remaining claims pertaining to Economía's final determination of dumping.   WT/DS331/R 
Page 73 
 
 
  E. CLAIMS RELATING TO DETERMINATION OF INJURY AND CAUSAL LINK  
1. "Objective examination" of "positive evidence" in injury determinations 
7.206  Guatemala makes a number of claims relating to the Mexican investigating authority's injury 
analysis.  These claims are based on certain common principles in Article 3 of the Anti-Dumping 
Agreement , which deals with the determination of injury  caused to the "domestic industry" (as defined 
by Article 4.1) producing the "like product" (defined  in Article 2.6).  Therefore, before examining 
each of these claims individually, we recall th e relevant legal provisions and general guiding 
principles involved.   
7.207  Article 3 of the Anti-Dumping Agreement  is entitled "Determination of Injury".  Article 3 as a 
whole deals with obligations of Members with respect to the determination of injury and causal link.  
"Injury" means "material injury to a  domestic indus try,  threat of material injury to a  domestic 
industry  or material retardation of the establishment of  such an industry  ".238  The focus of an injury 
determination is the state of the "domestic indus try"; the causation analysis focuses on the causal link 
between dumping and any injury to the "domestic industry".   
7.208  The term "domestic industry" is defined in Ar ticle 4.1.  Article 4 is entitled "Definition of 
domestic industry".  Article 4.1 reads, in part: 
"For the purposes of this Agreement, the term  "domestic industry" shall be interpreted 
as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products ..." 
7.209  The concept of "like product" is therefore also at  the root of the notion of "domestic industry".  
Article 2.6 of the Anti-Dumping Agreement states:   
"Throughout this Agreement the term "like product" ("produit similaire") shall be 
interpreted to mean a product which is iden tical, i.e. alike in all respects to the 
product under consideration, or in the absence of such a product, another product 
which, although not alike in all respects, has characteristics closely resembling those 
of the product under consideration." 
7.210  This provision defines the scope of the "like pr oduct" in relation to the scope of the "product 
under consideration".  However, the Agreement contai ns no further explicit guidance in relation to the 
delineation of the "product under consideration".   
7.211  Article 3.1 is an overarching provision that sets forth a Member's fundamental, substantive 
obligation in respect of the determination of in jury and causation.  Article 3.1 provides:   
"A determination of injury for purposes of  Article VI of GATT 1994 shall be based 
on positive evidence and involve an objective examination of both (a) the volume of 
the dumped imports and the effect of the dumped imports on prices in the domestic 
market for like products, and (b) the consequent impact of these imports on domestic 
producers of such products." 
7.212  This provision requires, among other things, that  the injury determination be based on an 
"objective examination" of "positive evidence".   
                                                     
 
238Footnote 9 to the Anti-Dumping Agreement . WT/DS331/R 
Page 74  
 
 7.213  We consider that "positive evidence" is evidence th at is relevant and pertinent with respect to 
the issue to be decided, and that  has the characteristics of being inherently reliable and creditworthy. 
Under the positive evidence criterion of Article 3.1,  the question whether the information at issue 
constitutes "positive evidence" — i.e., is relevant, pertinent, reliable, and creditworthy —is assessed 
with respect to the particular issue at stake and the particular circumstances of a given case.
239 
7.214  While the term "positive evidence" focuses on th e facts underpinning and justifying the injury 
determination, the term "objective examination" is concerned with the investigative process itself.  An 
"objective examination" requires that the domestic industry, and the effects of dumped imports, be 
investigated in an unbiased manner, without favouring the interests of any interested party, or group 
of interested parties, in the investigation.  Th e duty of the investigating authorities to conduct an 
"objective examination" recognizes that the determina tion will be influenced by the objectivity, or any 
lack thereof, of the investigative process.  Therefor e, the identification, investigation and evaluation of 
the relevant factors must be "even-handed".240   
7.215  The overarching obligation in Article 3.1 – that the determination of injury to the domestic 
industry be based on an "objective examination" of  "positive evidence" – informs the more detailed 
obligations in succeeding paragraphs.  For the pur poses of this dispute, these relevant obligations 
concern the consideration of the volume of dumped imports, and their effect on prices (Article 3.2), 
the impact of dumped imports on the domestic indus try (Article 3.4) and the causal link between 
dumped imports and injury (Article 3.5).  These provisions read:   
"3.2 With regard to the volume of the dumped imports, the investigating 
authorities shall consider whether there h as been a significant increase in dumped 
imports, either in absolute terms or re lative to production or consumption in the 
importing Member.   With regard to the effect of the dumped  imports on prices, the investigating authorities shall consider wh ether there has been a significant price 
undercutting by the dumped imports as compar ed with the price of a like product of 
the importing Member, or whether the effect of such imports is otherwise to depress 
prices to a significant degree  or prevent price increases, which otherwise would have 
occurred, to a significant degree.  No one or several of these factors can necessarily 
give decisive guidance.  [...] 
3.4 The examination of the impact of the dumped imports on the domestic 
industry concerned shall include an evalua tion of all relevant economic factors and 
indices having a bearing on the state of the industry, including actual and potential 
decline in sales, profits, output, market shar e, productivity, return on investments, or 
utilization of capacity;  factors affecting domestic prices;  the magnitude of the 
margin of dumping;  actual and potential negative effects on cash flow, inventories, 
employment, wages, growth, ability to raise capital or investments.  This list is not exhaustive, nor can one or several of these factors necessarily give decisive guidance. 
3.5 It must be demonstrated that the du mped imports are, through the effects of 
dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this 
Agreement.  The demonstration of a causal  relationship between the dumped imports 
                                                     
 
239 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, paras. 164 and 165, upholding 
Panel Report, Mexico – Anti-Dumping Measures on Rice, paras. 7.55 and 7.61.  See also Appellate Body 
Report,  US – Hot-Rolled Steel, para. 192. 
 
240 Appellate Body Report,  US – Hot-Rolled Steel, para. 196.  WTO panels are under a similar duty, 
under Article 11 of the DSU , to make an "objective assessment of th e matter … including an objective assessment 
of the facts".  The obligation to make an "objective a ssessment" includes an obligation to act in "good faith", 
respecting "fundamental fairness".  We find support in Appellate Body Report, EC- Hormones, para. 133.   WT/DS331/R 
Page 75 
 
 
  and the injury to the domestic industry shall be based on an examination of all 
relevant evidence before the authorities.  The authorities shall also examine any 
known factors other than the dumped imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to the dumped imports.  Factors which may be relevant in this respect 
include,  inter alia , the volume and prices of imports not sold at dumping prices, 
contraction in demand or changes in the pa tterns of consumption, trade restrictive 
practices of and competition between the foreign and domestic producers, 
developments in technology and the export performance and productivity of the domestic industry." 
7.216  Against this backdrop, we address Guatemala's claims relating to the Mexican investigating 
authority's injury and causation analyses below.  
2. Time gap between the end of the period of investigation and the initiation of 
investigation 
(a) Arguments of the parties 
(i) Guatemala 
7.217  Guatemala asserts that  Mexico violated Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping 
Agreement by relying on a period of investigation th at ended significantly (eight months) before the 
initiation of the investigation (and two years prior to  the imposition of duties) and therefore failed to 
take into account relevant data  relating to the period immediately preceding the investigation.  
According to Guatemala, the determination of inju ry and causal link was therefore not based on an 
objective examination of positive evidence.  
(ii) Mexico 
7.218  Mexico argues that Guatemala's allegations are without foundation and fail to establish a 
prima facie case, and that the injury/causation dete rmination complied with Articles 3.1, 3.2, 3.4 
and 3.5 of the Anti-Dumping Agreement.  Mexico asserts that the Anti-Dumping Agreement does not 
contain any specific and express rules relating to the in jury investigation period, and that the period of 
eight months between the end of the investiga tion period and the initiation was reasonable and as 
close as possible to the date of initiation. 
(b) Arguments of the third parties  
7.219  The European Communities  endorses Guatemala's analysis of considerations relevant to the 
Panel's examination.  According to the Europ ean Communities, data from a recent POI are more 
likely to yield relevant positive evidence, and Mexi co's arguments are of questionable merit.   
7.220  Japan takes no position on the factual aspects of this case, but asserts that an eight-month 
period from the initiation of the investigation may ra ise doubts about the pertinence of the information 
gathered to the existence of current injury, questioning the merits of Mexico's arguments. 
7.221  The United States  asserts that the use of a "stale" POI is inconsistent with Articles 3.1, 3.2, 
3.4 and 3.5 of the Anti-Dumping Agreement , and questions the merits of Mexico's arguments in light 
of the circumstances of this case. WT/DS331/R 
Page 76  
 
 (c) Evaluation by the Panel 
(i) Factual background 
7.222  We first recall the undisputed facts on the record.  Economía examined data for a period of 
investigation covering July through December 2000 for purposes of its dumping determination, and 
July through December 1998, 1999 and 2000 for purposes of its injury analysis.  Economía adopted 
the injury POI propo sed by the applicant.
241  The application was filed on 22 May 2001.  Economía 
sought clarifications from the applicant on 11 J une 2001, and the applicant submitted responses on 
9 July 2001.  The investigation was initiated on 24  August 2001, about eight months after the end of 
the period of investigation.  Final anti-dumpi ng measures were imposed pursuant to the Final 
Determination published on 13 January 2003, just over two year s after the end of the period of 
investigation.   
(ii) Analysis 
7.223  We see the main issue before us as whether, in this case, in using data from an investigation 
period that ended about eight months prior to the da te of initiation of the investigation (and about two 
years prior to the imposition of the final anti-dumping measure), the Mexican investigating authority 
breached the requirement in Article 3.1 to conduct an "objective assessment" of "positive evidence".  
As outlined above, because Article 3.1 sets out an overarching principle that informs the injury 
obligations in the rest of Article 3, our views on th is issue will also resolve Guatemala's claims here 
under Articles 3.2, 3.4 and 3.5 of the Anti dumping Agreement. 
7.224  We begin by underlining that the selection by an investigating authority of the period of 
investigation is clearly a critical element in the anti-dumping investigative process:  it determines the 
data that will form the basis for the assessment of dumping, injury and the causal relationship between 
dumped imports and the injury to the domestic industry.242  
7.225  We agree with Mexico243 to the extent it argues that the Anti-Dumping Agreement does not 
contain any specific and express rules concerning the peri od to be used for injury data collection in an 
anti-dumping investigation.244,245  However, as also acknowledged by  Mexico, this does not mean that 
                                                      
241 The notice of initiation, Exhibit GTM-4, para. 90,  indicates that the applicant, "proposed the period 
from July to December 2000 as the period to be investigated because during that time imports of standard pipe from Guatemala were carried out in conditions of price di scrimination, which was reflected in a deterioration of 
its production plant, commercial activity and financial operations.  The Ministry determined the period 
July-September 2000, which meets the requirements laid down in the law, as the period to be investigated".  See 
also Exhibit GTM-23, para. 152. 
 
242 We find support for our view in the Panel Report in Mexico – Anti-Dumping Measures on Rice , 
para. 7.56.  The Appellate Body upheld the Panel's finding on this issue.  See Appellate Body Report, para. 172.  
 
243 See e.g. Mexico's response to question 23 from the Panel. 
 
244 We recall and endorse the view of the Egypt - Rebar  panel, paras. 7.130-7.131, that neither 
Article 3.1 nor 3.5 nor any other provision of the Anti-Dumping Agreement , "contains any specific rules as to 
the time periods to be covered by the injury or dumping investigations, or any overlap of those time periods."  
That panel further observed, : ".... the only provisions  that provide guidance as to how the price effects and 
effects on the domestic industry if the dumped imports are to be gauged are (as cross-referenced in Article 3.5), 
Articles 3.2 (volume and price effects of dumped imports),  and Article 3.4 (impact of the dumped imports on the 
domestic industry).  Neither of these provisions specifies particular time periods for these analyses ..." 
 
245 We recall that footnote 4 to Article 2.2.1 of the Anti-Dumping Agreement , associated with the term 
"extended period of time" in the context of determining whether certain sales may properly form the basis for a WT/DS331/R 
Page 77 
 
 
  the authority enjoys unlimited discretion to use an y period of investigation in reaching its injury 
determination.   
7.226  We consider that Article VI of the GATT 1994 and the relevant provisions of the Anti-
Dumping Agreement offer textual and contextual  evidence for the proposition that a Member may 
impose an anti-dumping measure only if it makes a reasoned determination that dumped imports are 
currently causing injury.  In this respect, Article VI.2 of the GATT 1994246 provides that: 
"In order to offset or prevent dumping, a contracting party may levy on any dumped 
product an anti-dumping duty not greater in amount than the margin of dumping in respect of such product". 
Article 11 of the Anti-Dumping Agreement  similarly provides that: 
"An anti-dumping duty shall remain in force only as long as and to the extent 
necessary to counteract dumping which is causing injury". 
In addition, Article 3.2 addresses the volume a nd price effects of the dumped imports.  
Article 3.4 requires an examination of the impa ct of the dumped imports upon the state of the 
domestic industry.  Article 3.5 of the Anti-Dumping Agreement provides:   
"It must be demonstrated that the dumped imports are, through the effects of 
dumping, as set forth in paragraphs 2 and 4, causing injury  within the meaning of this 
Agreement. 
[...]". (emphasis added)247 
7.227  These provisions – with such terms as "offset" and "counteract" and the requirement of a 
current  causal link – furnish clear textual indicati ons that anti-dumping measures may be imposed 
only to offset dumping currently  causing injury.  We agree with th e approach of previous panels in 
discerning an inherent real-time link between the i nvestigation leading to the imposition of measures 
and the data on which the investigation is based.  This link connects the imposition of the measure and 
the conditions for application of the measure:  dumping ( currently ) causing injury.248   
7.228  It is well established that the data on the basis of which this determin ation is made may be 
based on a past period, known as the period of inves tigation.  Nevertheless, because this "historical" 
data is being used to draw conclusions about the cu rrent situation, it follows that the more recent data 
                                                                                                                                                                     
normal value in a dumping calculation, provides:  "The extended period of time should normally be one year but 
shall in no case be less than six months." 
 
246 The term "offset" suggests that the scheme established in Article VI of the GATT 1994, and applied 
through the provisions of the  Anti-Dumping Agreement ,  fulfils a corrective function:  Members are permitted 
to take corrective measures in order to counter the injurious situation created by dumping.  Under the logic of 
this corrective scheme, the imposition of anti-dumping duties is  justified to the extent that they respond to injury 
caused by dumping.  See, for example, Panel and Appellate Body Report in Mexico – Anti-Dumping Measures 
on Rice , paras. 7.58 and 165, respectively. 
 
247 We are aware that the Spanish text of the Agreem ent reads:  "Habrá de demostrarse que, por los 
efectos del dumping que se mencionan en los párrafos 2 y 4, las importaciones objeto de dumping causan  daño 
en el sentido del presente Acuerdo".  The use of the present tense of the verb in the Spanish text confirms to us 
the necessity that the Agreement envi sages that measures may be imposed only where dumped imports cause 
current injury. 
 
248 We find support for our views in Panel and Appellate Body Reports, Mexico – Anti-Dumping 
Measures on Rice , paras. 7.56 – 7.61 and 165, respectively.  
 WT/DS331/R 
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 is likely to be inherently more relevant and thus especially importa nt to the investigation.  This 
implies, consequently,  that the data considered  concerning dumping, injury and the causal link should 
include, to the extent practicable, the most recent possible information, taking into account the inevitable delay caused by the need for an investigation, as well as any practical problems of data 
collection in a particular case.  We find further, contextual, support for our views in the Anti-Dumping 
Agreement .
249  We also note that past panels and the A ppellate Body have underlined the importance 
for POI data to relate to the recent past, so as to  establish the existence of  injury caused by dumped 
imports (as far as practicably possible).250   
7.229  Moreover, we note that the Committee on Anti-Dumping Practices adopted a 
Recommendation concerning the Periods of Data Collection for Anti-Dumping Investigations 
(G/ADP/6, adopted 5 May 2000) which sets forth gui delines for determining what period or periods 
of data collection may be appropriate for th e examination of dumping and of injury.  The 
Recommendation stipulates inter alia  that the period of data collection should end as close to the 
initiation of the investigation as is practicable.251  This Recommendation is a non-binding guide to the 
common understanding of Members on a ppropriate implementation of the Anti-Dumping Agreement , 
and does not add new obligations, nor detract from the existing obligations, of Members under the 
                                                      
249 For example, in Article 14.2 of the Anti-Dumping Agreement  dealing with anti-dumping actions on 
behalf of a third country.  Article 14.2 provides as follows: 
"14.2  Such an application [for an anti-dumping action on behalf of a third country] shall be 
supported by price information to show that the imports are being dumped and by detailed information to show that the alleged dumping is causing injury  to the domestic industry 
concerned in the third country.  The government of the third country shall afford all assistance 
to the authorities of the importing country to obtain any further information which the latter may require" (emphasis added). 
If such is the case in respect of applications for third country anti-dumping actions, it seems reasonable 
to conclude that a similar temporal requirement exists when the anti-dumping proceedings relate to injury being caused to a Member's own domestic industry. 
 
250 For example, Panel Report,  EC - Tube or Pipe Fittings , para. 7.101 (addressing the dumping POI):  
"The period of investigation terminates as close as possible to the date of initiation of the investigation in order 
to ensure that the data pertaining to  the investigation period, while histor ical, nevertheless refers to the recent 
past ..." (the Appellate Body upheld the Panel's findings on this issue – see Appellate Body Report, EC - Tube 
or Pipe Fittings , para. 84);  Panel Report, US - Hot-Rolled Steel , para. 7.234:  "In our view, a proper evaluation 
of the impact of dumped imports on the domestic industry is dynamic in nature and takes account of changes in the market that determine the current state of the industry."  Further contextual support can be found in the 
Agreement on Safeguards , and Article 2.1 of the Agreement on Safeguards  in particular.  See, for example, 
Appellate Body Report, Argentina – Footwear (EC) , footnote 130;  Panel Report, US - Lamb,  para. 7.192. 
 
251 Recommendation Concerning the Periods of Data Collection for Anti-Dumping Investigations 
(G/ADP/6, adopted 5 May 2000) provides in relevant part that: 
"the Committee recommends that with respect to original investigations to determine the 
existence of dumping and consequent injury -  
1. As a general rule: (a) the period of data collection for dumping investigations normally should be twelve 
months, and in any case no less than six months, ending as close to the date of initiation as is 
practicable;" (footnote omitted) ... (c) the period of data collection for injury investigations normally should be at least 
three years, unless a party from whom data is being gathered has existed for a lesser period, 
and should include the entirety of the period of data collection for the dumping investigation; ...". 
 WT/DS331/R 
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  Agreement.252  We nevertheless observe that it by no mean s runs counter to our interpretation of the 
obligations found in the text of the Anti-Dumping Agreement .253  
7.230  There are, of course, potential difficulties with  the reliability and probative value of data 
relating to the period after  initiation, because those data may be a ffected by the very existence of the 
investigation.  However, we consider that the i nvestigating authority should rely upon information 
pertaining to a period approaching, as close as practicab le, the date of initiation of the investigation.  
This is particularly important because the Agreemen t envisages that an investigation may last 12 - or, 
in special circumstances 18 - months.254  Even in an optimal scenario  where the POI ends the day 
before the date of initiation, the data from whic h conclusions would be drawn relating to current 
dumping causing injury will be at least 12 (and in special circumstances, 18) months old.   
7.231  As we have stated, in the case at hand, duties were imposed pursuant to an initiation 
approximately eight months after, and a final resolu tion issued approximately 24 months after, the end 
of the period of investigation, on the basis of an investigation that lasted 17 months.   
7.232  Given these considerations, we evaluate whether,  in this case, this gap of eight months 
between the end of the period of investigation and the initiation of the investigation, and another gap 
of just over two years between the end of the peri od of investigation and th e imposition of the final 
anti-dumping duties raises such doubts about the exis tence of a sufficiently relevant nexus between 
the data relating to the pe riod of investigation and current  injury and causal link as to result in a 
violation of Article 3.1 (and Artic les 3.2, 3.4 and 3.5) of the Anti-Dumping Agreement .  To resolve 
this issue, we focus on the issue of "remoteness" of the investigation period fro m the date of initiation, 
given that the instant investigation took place wi thin the overall time-frames envisaged by the 
Agreement (and Guatemala does not assert otherwise).255   
7.233  Mexico insists that the end of the period of investigation was the closest it could possibly 
have been to the initiation, taking into account, inter alia , that this was five months prior to the 
submission of the application.  Moreover, Mexico points out that, during the three-month period between the submission of the application (on 22 May 2001) and the issuance of the Initiation 
Determination (on 24 August 2001), the investigating authority took steps to assess the information in 
the application and to require the submission of supplementary information.
256  Economía issued a 
                                                      
252 G/ADP/M/7 at para. 40, G/ADP/AHG/R/7, para. 2. 
 
253 Past panels have similarly referred to this Recommendation in their reasoning. See e.g. Panel 
Report, Guatemala – Cement  II, para. 8.266;  Panel Report, US – Hot-Rolled Steel , footnote 152;  Panel Report,  
Argentina – Poultry Anti-Dumping Duties , para. 7.287. 
 
254 Article 5.10 provides:  "Investigations shall, exce pt in special circumstances, be concluded within 
one year, and in no case more than 18 months, after their initiation." 
 
255 We recall Mexico's argument that it is not possi ble to challenge the selection of a POI in the 
abstract, because it is necess ary to consider the nature and relevance of the data actually gathered during the 
POI.  We note that we are considering the data actua lly on the record of the underlying investigation in our 
evaluation of this claim.  In respect of Mexico's contention that changes in  circumstance which may occur at late 
stages of a POI may be the subject of subsequent reviews under Articles 9 and 11, we would simply point out that this case does not involve changes occurring late in  the POI, nor can the availability of reviews substitute 
for compliance with obligations governing the initiation and conduct of the investigation. 
 
256 Exhibit GTM-2, e.g. some questions like 5 and 7 ask about developments during the three six-month 
periods July-December 1998, 1999 and 2000.  As the Mexican investigating authority did not ask any questions 
directed at assessing the validity of th e POI proposed by the applicant, we consider that Economía had already 
accepted the POI at that point.  
 WT/DS331/R 
Page 80  
 
 "prevención" and assessed the evid ence in the application during a period over and above the time 
required to arrange publication of the notice in the Of ficial Register.  In response to questioning as to 
whether any practical problems necessitated this par ticular period of investigation;  whether it was 
established that updating the information was not po ssible;  and whether any attempt was made to 
update the information, Mexico confirmed that, as Economía deemed that the POI was appropriate 
and that the information before it was adequate in order to complete its investigation, Economía made 
no attempt to update the information, did not requ est more recent information and therefore did not 
experience any practical problems in updating the information.
257   
7.234  We consider that it would have been appropr iate and desirable for Economía to collect 
updated data, if not prior to initiation, then at least for the purposes of its substantive injury 
analysis.258  However, we observe that there are practical  time constraints in respect of the production, 
gathering and analysis of data.  Particularly in light  of the time required for data of the type included 
in this anti-dumping application to be produced and published, and then collected and analysed by the 
applicant in order to rely upon it in its appli cation, it was not unreasonable for the investigating 
authority to rely on a data set terminating eight mont hs prior to the initiation of the investigation.   
7.235  In this case, furthermore, the investigation o ccurred within the overall time frame envisaged 
by the Agreement.  That is, the investigation fe ll within the time window – i.e. except in special 
circumstances, 12 months, and in no case more than  18 months – envisaged by Article 5.10 of the 
Agreement.  In any event, Guat emala has made no allegation that the provisions of Article 5.10 are 
not satisfied.  We do not consider that Guatemal a has established that the information used by 
Economía did not reflect a sufficiently relevant ne xus between the data relating to the period of 
investigation and current  injury and causal link, and thus did not give reliable indications of current 
injury.  Given that the Anti-Dumping Agreement  does not contain any specific and express rules 
concerning the period to be used for injury data collection in an anti-dumping investigation, and on 
the basis of the facts and arguments before us, we do not consider that the period used in this case was 
remote.   
7.236  This is not to say that we are fully satisfied with Economía's selection of the injury POI, and 
we believe it is instructive to set out our remaini ng concerns in some detail.  We note that Economía 
adopted the period of investigation proposed by the a pplicant.  It is clear to us that acceptance of the 
POI proposed by the applicant may not necessarily c onstitute a violation of Article 3.1, but we are 
concerned that Economía adopted this period without giving any consideration to whether or not it 
was appropriate to use this period in the circumstan ces of this particular case.  The record does not 
                                                      
257 See Mexico's response to question 156 (a) from the Panel.  Economía was certainly aware of the 
possibility of acquiring updated information; this occurred  in relation to the applicant's allegation of "threat of 
material injury" (which is not at issue here).  In this respect,  the record indicates that Economía did request, in 
respect of certain injury factors, updated information at least for a similar time period following the POI.  See 
Exhibit GTM-2, Question 9)  In response, Hylsa provided certain information pertaining to the first semester 
(January-June) of 2001, or, in certain circumstances wh ere all of the information was not available, January-
March 2001.  See Exhibit GTM 3:  "The annexes are docu mented;  volume and value, capacity and the financial 
data which update the situation for the indicators contained in the annexes, for the first six months of 2001.  The 
updated information is documented; some information is still being processed, so not all the information is 
documented."  See also Hylsa's response to Question 10 in Exhibit GTM-3, referring to other information for the period January-June 2001. 
 
258 Certain record evidence appears to pertain to the post-POI period.  For exam ple, the exporter Tubac 
submitted post-POI information relating to imports into Mexico (Exhibit GTM-5, pp. 24-26);  and with respect 
to the evolution of imports in 2001 (post-POI) (Exhibit GTM-12, p. 25).  Tubac was requested to submit 
evidence on the evolution of export prices from the prelimin ary investigation to the date of the technical meeting 
in March 2002 (Exhibit GTM-19, pp. 81-2).  This informat ion, in response to Question 28 (a), is confidential. 
 WT/DS331/R 
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  reflect that Economía gave any such specific cons ideration.  The explanation for the applicant's 
selection of the period, as reflected in the Initiati on Determination and in the Final Determination259 
was that, according to the applicant, it was during th is period that dumped imports caused injury to its 
domestic industry.  We consider th at it would have been appropriate and highly d esirable for the IA to 
have evaluated whether or not it was appropriate to  use this period in the circumstances of this 
particular case.  This would have provided an en hanced assurance of the ob jectivity of the IA in 
selecting the injury POI.  
7.237  We further note that none of the interested parties, including Tubac, questioned Economía's 
selection of POI at any point during the underlying in vestigation.  Mexico underlines that the POI was 
indicated in the Initiation Determination, so that  interested parties had knowledge of, and could 
challenge it, from that point in time;  none did.  Mexico asserts that Economía was entitled to rely on 
the POI selected in this case in light of the interested  parties' tacit admission of its appropriateness.  
We have already noted the determinative role of th e POI in establishing the framework for injury data 
collection and analysis for the purpo ses of Article 3.  We believe that the selection of the POI is 
linked to the IA's obligation under Article 3.1 to conduct an objective assess ment of positive evidence 
and an IA is bound to satisfy its obligations in this respect whether or not it is raised by an interested 
party in the course of an investigation.  By this, we do not mean to suggest that the established rules 
on burden of proof and standard of review would not apply in the event an investigating authority 
were challenged in this respect before a WTO Panel.   
7.238  In considering the evidence and arguments presente d by the parties before us, we have kept in 
mind the recent case, Mexico – Anti-Dumping Measures on Rice .  There, the panel found that Mexico 
had violated Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement by relying on a period of 
investigation that ended significantly prior to th e initiation of the investigation.  In upholding the 
Panel's decision, the Appellate Body stated:260   
"We agree with Mexico that using a remote investigation period is not  per se   a 
violation of Article 3.1.  In our view, however, the Panel did not set out such a 
principle, as its findings relate to the speci fic circumstances of this case.  The Panel 
was satisfied that, in this specific case, a  prima facie   case was established that the 
information used by Economía did not provide reliable indications of current injury and, therefore, did not meet the criterion of positive evidence in Article 3.1 of the Anti-Dumping Agreement .  The Panel arrived at this conclusion on the basis of 
several factors.  The Panel attached impor tance to the existence of a 15-month gap 
between the end of the period of investiga tion and the initiation of the investigation, 
and a gap of almost three years between the end of the period of investigation and the 
imposition of final anti-dumping duties.  Ho wever, these temporal gaps were not the 
only circumstances that the Panel took into account.  The Panel, as trier of the facts, gave weight to other factors:  (i) the peri od of investigation chosen by Economía was 
that proposed by the petitioner;  (ii) Mexico did not establish that practical problems 
necessitated this particular period of inves tigation;  (iii) it was not established that 
updating the information was not possible;  (iv) no attempt was made to update the 
information;  and (v) Mexico did not provide any reason—apart from the allegation that it is Mexico's general practice to accept the period of investigation submitted by the petitioner—why more recent information was not sought.  Thus, it is not only the 
remoteness of the period of investigation,  but also these other circumstances that 
formed the basis for the Panel to conclude that a  prima facie   case was established.  
In the light of the general assessment of these other circumstances carried out by the 
Panel as trier of the facts, we accept that  a gap of 15 months between the end of the 
                                                     
 
259 See Exhibit GTM-4, para. 90 and Exhibit GTM-23, para. 152 ff.  
260 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 167. WT/DS331/R 
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 period of investigation and the initiation of  the investigation, and another gap of 
almost three years between the end of the period of investigation and the imposition of the final anti-dumping duties, may raise real doubts about the existence of a sufficiently relevant nexus be tween the data relating to th e period of investigation and 
current injury.  Therefore, we have no reason to disturb the Panel's assessment that a 
 prima facie   case of violation of Article 3.1 was made out."  (footnotes omitted) 
7.239  We have taken careful note of the considerations  in that case.  In our view, a key distinction 
between that case and the case before us is a factual one .  That is, the temporal gaps in the instant case 
are not as large, with the result that the investiga tion period in the case at hand is not as "remote" as in 
the Rice case.  By choosing to base its determination of injury on a period of investigation which 
ended eight months before the initiation of the investigation, and not updating the information, 
Economía indubitably lacked the most pertinent, credible and reliable information.  However, given 
the practical time constraints inhe rent in the production of data that must then be collected and 
analysed by the applicant (in order to be reli ed upon and submitted in the application), and then 
analysed by the investigating authority, and given th at the investigation occurred within the overall 
time constraints envisaged by the Agreement, we do not consider that Guatemala has established that 
the temporal gaps in this case precluded Economía fr om making a determination of injury based on 
positive evidence and which involved  an objective examination.  
7.240  For these reasons, we find that Guatemala has faile d to establish that, in the circumstances of 
this case, Economía violated its obligations under Ar ticles 3.1, 3.2, 3.4 and 3.5 by relying on data 
from an investigation period that terminated about  eight months prior to the initiation and about 
two years prior to the imposition of the definitive measures.  
3. Use of six-month periods for the injury analysis 
(a) Arguments of the parties 
(i) Guatemala 
7.241  Guatemala argues that Mexico acted inconsistently with Articles 3.1, 3.2, 3.4 and 3.5 of the 
Anti-Dumping Agreement as it improperly limited its injury analysis to data relating to 
six-month periods each year within the period of  investigation (July–Dece mber 1998, 1999 and 2000), 
resulting in a determination of injury and causal link that was not based on an objective examination 
of positive evidence.   
(ii) Mexico 
7.242  Mexico  contends that Guatemala fails to establish a prima facie  case that its investigating 
authority did not comply with Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement in using 
six-month periods from each year of the period of inv estigation for the purposes of its injury analysis.   
(b) Arguments of the third parties 
7.243  The European Communities  endorses Guatemala's assessment under Articles 3.1, 3.2, 3.4 
and 3.5.  According to the European Communities, in  this case, there is no indication that the selective 
use of six-month data is jus tified (e.g. on seasonal grounds).  
7.244  Japan  takes no position on the factual aspects of this case, but asserts that there would not be 
an objective examination required by Article 3.1 if  authorities consider only limited information out 
of a limited period of each year w ithout "proper justification".  WT/DS331/R 
Page 83 
 
 
  7.245  The United States agrees with Guatemala that an objec tive determination cannot be based on 
an incomplete series of data unless the investiga ting authority provides a justified explanation for 
doing so.  While there does not appear to be evid ence that the six-month periods used here were 
periods of highest import penetra tion, it would in most cases be difficult to demonstrate dumping 
causing current injury by looking at six-month snapshots over a three-year period. 
(c) Evaluation by the Panel 
(i) Factual background 
7.246  We begin with the undisputed facts on the Pa nel record.  Economía adopted the dumping and 
injury POIs proposed by the applicant.  For its dumping determination, Ec onomía relied upon data 
pertaining to a six-month POI:  July-December 2000.   In making its injury determination, Economía 
identified the same six-month period as the "POI " and relied principally upon data from three six-
month periods (July-December 1998, 1999, 2000).261   
(ii) Analysis 
7.247  We see the issue raised by Guatemala's claim as whether Economía fulfilled the Article 3.1 
obligation to conduct an objective examination of positive evidence in relying on data from three 
six-month periods (July-December 1998, 1999, 2000) in  making its injury determination.  As already 
mentioned, because Article 3.1 sets out an overarching principle that informs the injury obligations in 
the rest of Article 3, our views on this issue will also resolve Guatem ala's claims here under 
Articles 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement.  
7.248  As we have already emphasized, the selection by  an investigating authority of the period of 
investigation is a critical element in the anti-dumpi ng investigative process:  it determines the data 
that will form the basis for the assessment of dum ping, injury and the causal relationship between 
dumped imports and the injury to the domestic industry.  
7.249  We agree with Mexico to the extent it argu es that the Anti-Dumping Agreement does not set 
forth any express requirement regarding the choice of  the period of investigation for the purpose of 
conducting an injury analysis.262  However, as also acknowledged by Mexico, this does not mean that 
an investigating authority's discretion in respect of the period it selects as the basis for its injury 
analysis is unlimited.263  We consider that the Article 3.1 requirement to base a determination of 
injury on positive evidence and pursuant to an objective examination neve rtheless impose certain 
limitations on an investigating authority's discret ion with regard to the comprehensiveness and 
reliability of the data used as the b asis for its injury determination.  In this respect, we recall that, 
under the standard of review set forth in Article 17.6 of the Anti-Dumping Agreement, we are called 
                                                      
 261 The notice of initiation, Exhibit GTM-4, para. 90,  indicates that the applicant, "proposed the period 
from July to December 2000 as the period to be investigated because during that time imports of standard pipe from Guatemala were carried out in conditions of price di scrimination, which was reflected in a deterioration of 
its production plant, commercial activity and financial operations.  The Ministry determined the period July-
September 2000, which meets the requirements laid down in the law, as the period to be investigated". 
 
See also Exhibit GTM-23, para. 152.  In its determination, Economía relied principally on data from 
July-December 1998, 1999 and 2000.  See Exhibit GTM-23, paras. 156 ff.  
 
262 We refer to and incorporate our views above, para.7.225. 
 
263 See e.g. Mexico's response to question 44 from the Panel.  
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 upon to assess whether the investigating authority' s establishment of the facts was proper, and its 
evaluation unbiased and objective.
264  
7.250  We consider that an objective examination of  positive evidence of the effects of dumping on 
the state of the domestic industry which enables the authority to conclude that dumped imports are causing injury to the domestic industry involves an analysis of trends over time of the volume and 
price of imports and of the state of the domestic industr y.  It is only such an analysis that will enable 
the authority objectively to gauge the effects of  the dumped imports on the domestic industry as 
required by Articles 3.1, 3.2 and 3.4 of the Anti-Dumping Agreement, and to assess whether the 
injury found to exist is caused by the dumped impor ts, as required by Article 3.5 of the Anti-Dumping 
Agreement.
265    
7.251  We therefore consider whether Economía's use of a subset of data temporally limited to 
July-December 2000266 and the corresponding six-month periods in the two previous years (1998, 
1999), was capable of yielding an accurate and represen tative picture that in turn enabled Economía to 
make an objective examination of positive evidence in r eaching its affirmative injury determination.     
7.252  We are of the view that, absent any proper jus tification for doing so, such an examination on 
the basis of an incomplete set of data proposed by  an applicant cannot, in principle, be an objective 
examination of positive evidence.  In our view, an  investigating authority is precluded from using 
temporal subsets within a period, without a suffici ent explanation and without a consideration as to 
whether the developments within that temporal s ubset are reflective of developments throughout the 
period or whether and why these subsets are justifie d and not anomalous.  This truncated temporal 
approach of using only certain data for the inju ry analysis does not constitute a proper establishment 
of the facts on which to base the determination.   
7.253  We hasten to point out that our decision should not necessarily be understood to say that there 
could never be any convincing, valid reasons for ex amining data pertaining to only certain parts of 
years (although, in our view, that may be an excep tional case).  However, in the case at hand, Mexico 
has not presented any effective refutation to Guatemal a's claim by pointing to a proper justification by 
Economía for the use of the six-month periods.  Mexico's main justification before us was a 
"structural symmetry" argument that the period of investigation for purposes of the dumping 
determination was July-December 2000, and that, th erefore, a corresponding six-month period should 
be used in the injury analysis in order to avoid "distortions" in the comparison between the period of 
investigation for purposes of the dumping determina tion and the period of investigation for purposes 
of the injury analysis.  In particular, Mexico asserted: 
                                                      
264 The Appellate Body in the EC – Bed Linen (Article 21.5 – India)  case also linked the objective 
examination requirement with the panel's standard of re view that requires it to exam ine whether the authority's 
establishment of the facts was proper.  The Appellate Body explained: 
 
"These requirements of paragraphs 1 and 2 of Article 3, as well as the requirements of 
Article 17.6(i), that investigating authorities establish the facts of the matter  properly   and 
evaluate those facts in an  unbiased and objective   manner, are mutually supportive and 
reinforcing. "  
 
 Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , footnote 141. 
 
265 We find support for our approach in Panel Report, Mexico – Anti-Dumping Measures on Rice , 
para. 7.80.  The Appellate Body upheld the Panel's finding on this issue.  See, in particular, Appellate Body 
Report, paras. 180-188.  
 
 266 See supra , para. 7.246. 
 WT/DS331/R 
Page 85 
 
 
  "... Mexico carried out an analysis and objective evaluation, taking account of 
previous comparable periods in order to  avoid distortions in the comparison of  the 
period of  investigation of dumping with the period of injury analysis".267 
7.254  However, while it is certainly appropriate for the injury POI to include the entirety of the 
dumping POI, we see no necessity or requirement in the Anti-Dumping Agreement  for a period of 
investigation on the injury analysis to be limited st rictly to the period of investigation for the dumping 
analysis, particularly where the latter period of inv estigation covers a period of less than 12 months.   
7.255  Although Mexico asserted that Economía used "s ymmetrical" six-month periods from each 
year in order to avoid distortions268, Mexico also confirmed that it was not, in fact, arguing that the 
use of data pertaining to six-month periods would provide better information than the use of annual 
data, or that the use of annual data would produce distortions.269   In any event, it is not clear to us 
how the use of data relating to the whole three- year period, as opposed to three six-month periods 
within those years, would have introduced distortions  (or would have resulted in more distortions) to 
the assessment of the "state of the domestic industr y". In this respect, we find support in the following 
statement of the Appellate Body in Mexico – Anti-Dumping Measures on Rice :270  
"We fail to see how, in the present case, the u se of data relating to the whole year, as 
opposed to the March to August period, woul d have introduced "distortions" of the 
assessment of the "state of the domestic industry".  Rather, in our view, examining 
data relating to the whole year would result in  a more accurate picture of the "state of 
the domestic industry" than an examination limited to a six-month period."   
Similarly, in the case at hand, we consider that an  examination of data relating to the whole years 
would produce a more accurate and representative pict ure of the "state of the domestic industry" than 
an examination limited to three six-month periods.   
7.256  We note that companies customarily maintain  annual financial, investment and accounting 
records.  In this case, certain data pertaining to the entire three-year period was on the record.271 
Mexico asserted, and the Preliminary (and Final) Dete rminations confirm, that financial information 
pertaining to Hylsa-DAT was submitted on an annual272, as well as semestral, basis, and Economía 
asserted that it was able to verify the corresponden ce between the two.  In response to questioning, 
                                                      
267 Mexico first written submission, para. 196 . 
 
268 See, for example, Mexico's first written submission, paras.  194-196.  At para. 195, Mexico stated: 
"that a semester of a year is structurally the same as the corresponding period of the previous year". 
 
269 See Mexico's response to question 155 from the Panel. 
 
270 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 183. 
 
271 Exhibit GTM-1, question 62, indicates that Econom ía sought, for example, with respect to sales, 
"monthly information for the thirty-six  months making up the period analysed ...".  Annex 6 of the applicant's 
questionnaire in Exhibit GTM-1 indicat es that Economía requested and recei ved "Statement of costs, sales and 
profits of the like product" on an annual basis (for  1988, 1989) and for the six-month periods, July-December 
1999 and 2000.  Exhibit GTM-1, applicant's questionnaire, Annex 4 ("Domestic market indicators"), 5A 
("Applicant company's indicators, volumes") and 5B ("Applicant company's indicators, values") reflect monthly 
data over the three years.  As a further example, th e 17 December 2001 requests from Economía to domestic 
firms and CANACERO contained a chart asking for ec onomic injury factor data relating to the first and second 
semesters of 1998, 1999 and 2000, as well as any imports between January 1998 and December 2000.  
 
272 See Preliminary Determination, Exhibit GTM-10, para. 169;  see Final Determination, Exhibit 
GTM-23, e.g. paras. 215, 219-225. WT/DS331/R 
Page 86  
 
 Mexico further asserts that Economía never translat ed annual information into  semestral information, 
as most of the information on economic indicators was given on a monthly basis.
273  We consider that 
Mexico's account is not altogether  consistent throughout these proceedi ngs and it is not evident to us 
from the record how Economía conducted such a reconciliation.274  Moreover, such reconciliation 
would only have been in respect of a subset of the injury data used to  reach the overall injury 
determination.  Furthermore we note that Mexico's  position in this dispute is that it was unnecessary 
to seek full-year data:275 
"Bearing in mind that the second half of 2000 was taken as the period of investigation 
and hence the same previous periods for th e purpose of comparison, with regard to 
economic indicators, no consideration at all w as given to whether or not to take into 
account any information corresponding to the pe riod of thirty-six months, or to the 
reconciliation of the trends in the th ree six-month periods with the annual 
information.  However, it should be poi nted out that in the case of financial 
indicators, for variables where there was only annual information, the analysis took 
account of full years." 
7.257  We consider it significant that, in response to questioning as to:  (i) whether any practical 
problems necessitated the use of the particular PO I relied upon in this investigation for the injury 
analysis;  (ii) whether it was established that use of  a comprehensive data set pertaining to the whole 
three years was not possible or practicable;  (iii)  whether Economía considered the representativeness 
of the semestral data vis-à-vis  the data for the entire three year period;  and (iv) whether any attempt 
was made to gather a comprehensive data set pert aining to the whole three years, Mexico confirmed 
that, as Economía deemed that the POI was appr opriate and that the information before it was 
adequate in order to complete its investigation, Ec onomía made no attempt to gather and/or analyse a 
complete data set for the three years.276  Nevertheless, the record indicates that, for certain injury 
factors, Economía did take annual information into account.277  We consider that Economía did not 
perform a comprehensive assessment of the extent to  which the injury data upon it relied provided an 
accurate reflection of the state of the domestic industry over the whole three-year period concerned 
(1998, 1999, 2000).278  
7.258  We recall the disagreement between the parties as to whether or not record evidence indicated 
that the POI used by Economía was "selective" in  the sense,  for example, of being the period of 
                                                      
273 Mexico's response to question 160 from the Panel. Mexico asserts in response to question 160 (a) 
from the Panel that, "[t]o validate this information in operational terms, the investigating authority added up the 
headings sales income, cost of sales, gross profit, operating expenses and operating profit for the first and 
second semesters and the result obtained was equal to the figures for the same headings in annual terms.  The Ministry therefore deemed the figures for the first seme ster to be correct as re gards economic indicators". 
 
274 The Preliminary Determination, Exhibit GTM-10 , paras. 169-170 indicates, for example, that 
"Hylsa, Division of Steel Tubing,… provided by the applicant in annual terms.  For the sake of financial 
comparability, the Ministry updated the financial information on the basis of the method of changes in the 
general level of prices …". 
 
275 See Mexico's response to question 52 from the Panel. 
 
276 See Mexico's responses to questions 30 and 47-53 from the Panel. 
 
277 See the table summarizing time periods taken into account in respect of the various injury factors in 
Guatemala's first written submission, para. 262.  
 
278 We recall our view of the determinative role of the POI in terms of the Article 3.1 obligation to 
perform an objective examination of positive evidence, an d incorporate here our views expressed in para.7.237  
supra.    WT/DS331/R 
Page 87 
 
 
  highest import penetration.  The question arises because Economía departed from a POI with 
comprehensive and continuous tempor al coverage by accepting the applicant's proposed POI, and the 
two previous six-month periods.  Moreover, becau se Economía gave no comprehensive consideration 
as to whether and how the trends within the six-mo nth periods related to de velopments outside that 
period, it is not clear to us how Economía could have been confident that its approach avoided, rather 
than caused, distortions, and, in particular distortions that might have been favourable to the applicant.  
In the Initiation Resolution, Economía stated that th e applicant "said that consumption of standard 
pipe is largely related to the behaviour of th e construction and manufacturing industries.  The 
applicant stated in particular that on the domestic ma rket consumption of standa rd pipe is the same all 
year except for a few months where, for fiscal reasons, there is an increase, as in December, or a drop, 
as in April ...".279  The Final Determination reads, in part:  "... the applicant stated that on the domestic 
market consumption of the pipe under investigation is normally constant all year, other than in a few 
months for fiscal reasons."280  We consider that the applicant's i ndication of variations in consumption 
patterns should have provided even more of an in centive for Economía to evaluate how such alleged 
trends within an annual period may or may not have been reflected in  the data pertaining to the three 
six-month periods relied upon by Economía.  Howe ver, the record indicates that Economía accepted 
the applicant's assertion without undertak ing any such comprehensive evaluation.281  E v e n  t h o u g h  
there is no clear indication in the record that the PO I was chosen in order to be "biased" in favour of 
the applicant, as for example, to reflect a period when imports clearly increased, in the absence of any 
explanation as to whether or how the POI consis ting of the six-month period proposed by the 
applicant, and two previous periods of six-months was appropriate and reflective of the state of the 
domestic industry over the relevant period, we consider that the PO I was indeed "selective" in the 
circumstances of this case.   
7.259  We note Mexico's argument that none of the in terested parties, including Tubac, questioned 
Economía's selection of POI at any point during the underlying investigation.  Mexico underlines that 
the POI was indicated in the initiation notice, so th at interested parties had knowledge of, and could 
challenge it, from that point in time;  none did.  Mexico asserts that Economía was entitled to rely on 
the POI selected in this case in light of the interested  parties' tacit admission of its appropriateness.  
However, as the selection of the POI is linked to an investigating authority's obligation under 
Article 3.1 to conduct an objective assessment of pos itive evidence, that authority is bound to satisfy 
its obligations whether or not this issue is rai sed by an interested party in the course of an 
investigation.282  We therefore do not believe that the fact that the issue was not raised by any 
interested party in the course of the underlying inves tigation justifies the lack of any attention to this 
issue by Economía.   
7.260  We recall the findings of the panel (upheld by the Appellate Body) in the recent Mexico  – 
Anti-Dumping Measures on Rice dispute .  Considering a claim of inconsis tency with Article 3.1, that 
panel (upheld on appeal) found that the data used by the Mexican investigating authority – similarly 
pertaining to six-month periods within the investig ation period – did not provide an "accurate and 
                                                      
279 Exhibit GTM-4, para. 88. 
 
280 Exhibit GTM-23, para. 151.   See similar citation in the preliminary resolution, Exhibit GTM-15, 
para. 113.  
 
281 We note Mexico's reference (in paragraph 155 of Mexico's rebuttal submission) to paras. 202 
and 203 of the Final Determination, where Economía sets out its findings that the Mexican market, measured in 
terms of consumption, "remained practically constant in the periods July-December 1998 and 1999, then rose 
5 per cent in the period July-December 2000 …".  We do not consider that this finding of essentially "constant" 
consumption in relation to developments in the six-month periods is necessarily reflective of developments in 
the other six-month periods in those years. 
 
282 See supra , para.7.237. WT/DS331/R 
Page 88  
 
 unbiased picture".  That panel found an inconsis tency with Article 3.1 not only due to the 
investigating authority's selective use of the info rmation gathered for the purpose of the injury 
analysis (without any proper justification), but al so the acceptance by the investigating authority of 
the period of investigation proposed by the petitione r, knowing that the petitioner proposed that period 
because it allegedly represented the period of hi ghest import penetration.  In the specific 
circumstances of that case, these two factors, c onsidered together, were sufficient to make out a 
 prima facie   case that the data used by the investiga ting authority did not pr ovide an "accurate and 
unbiased picture".  The panel (upheld on appeal) f ound that Mexico had not presented an "effective 
refutation" of that  prima facie   case by providing a proper justifica tion for the use of the six-month 
period.  The only explanation presented by Mexico was that the period of investigation for purposes 
of the dumping determination was March to Augus t 1999, and that, therefore, a corresponding six-
month period should be used in the injury analysis in order to avoid "distortions" in the comparison 
between the period of investigation for purposes of  the dumping determination and the period of 
investigation for purposes of the injury analysis.  A lthough the case is, in some respects, similar to the 
one before us, we wish to point out that our finding here rests on a slightly different basis.  That is, 
while our finding rests in part on the "selectivity" in herent in Economía's accep tance of the injury POI 
proposed by the applicant without sufficient justification, we also focus upon on the non-comprehensiveness and unreliability of the factual b asis used by Economía, i.e., an incomplete data 
subset from three six-month periods in 1998, 1999 a nd 2000 that had been proposed by the applicant 
and accepted by Economía without sufficient evaluation and justification of its representativity of 
developments over the injury POI.    
7.261  For the above reasons, we find that Economía's re liance, without sufficient justification, upon 
a subset of data temporally limited to three si x-month periods (July-December) over three consecutive 
years (1998, 1999, 2000), as proposed by the applican t, was not capable of yielding an accurate and 
representative picture enabling Economía to make an objective examination of positive evidence in 
reaching its affirmative injury determination.  We  therefore find that Economía acted inconsistently 
with Mexico's obligations under Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement .  
4. Volume and price effects of dumped imports 
(a) Arguments of the parties 
(i) Guatemala 
7.262  Guatemala  claims that Mexico violated Articles 3.1 and 3.2:  (i) in estimating the volume of 
imports of the product under investigation from countries other than Guatemala by using a non-
representative sample for six-month periods, and by applying unfounded hypotheses (according to 
Guatemala, the resulting figures were not positive evid ence and the IA's examination of them was not 
objective;  such imports are a component of domestic  consumption in the injury analysis and the IA 
relied on such evidence in concluding that the incr eased imports from Guatemala (relative to domestic 
consumption) had had negative volum e and price effects in the Mexican market);  (ii) in evaluating 
the price effects of imports from Guatemala, Economía  used an insufficient sample of 17 per cent of 
all imports from Guatemala, and performed its anal ysis of price effects for only for one six-month 
period (July-December 2000). 
(ii) Mexico 
7.263  Mexico  counters that the estimation methodology used by the IA for imports from sources 
other than Guatemala was sound, that no alternative source existed for the information, and that the 
sample it relied on was representative as it was based on significant volumes out of the total imported, 
and reflected data for the largest importers.  In resp ect of the price effects of imports from Guatemala, 
Mexico disagrees with the factual premise of Guat emala's allegation, arguing that the 17 per cent WT/DS331/R 
Page 89 
 
 
  sample was used only for the purpose of estimating the charges for bringing the imported merchandise 
from the port of entry to the Mexican customer's warehouse.  Therefore, Mexico argues, the IA's 
conclusions as to the volume and price effects of th e dumped imports were in conformity with the 
obligations in Articles 3.1 and 3.2 of the Agreement.   
(b) Evaluation by the Panel 
7.264  We consider whether Economía conducted an objective examination based on positive 
evidence in its analysis of the volume and price effects of the dumped imports.  Guatemala's allegations in respect of Economía 's treatment of the volume and price effects of the dumped imports 
in the course of its injury analysis under Articles 3.1 and 3.2 of the Anti-Dumping Agreement  focus on 
two main elements:  first, the methodology u sed by Economía to estimate the volume of the 
investigated product from sources other than Guatem ala (used as a component in estimating domestic 
consumption);  second, the sample and period used to estimate the price effe cts (or aspects of these 
effects) of imports from Guatemala.  We consider each in turn. 
(i) Methodology to estimate volume of im ports from sources other than Guatemala  
 7.265  We begin our analysis by recalling the text of Articles 3.1 and 3.2 of the  Anti-Dumping 
Agreement, cited above.  We agree with the views in  previous dispute settleme nt reports that it flows 
from reading these two provisions together that th e basis of any evaluation as to the volume of 
dumped imports or the price effects of su ch imports has to be "positive evidence".
283  As we have 
already stated, the term "positive evidence" in Articl e 3.1 relates "to the quality of the evidence that 
authorities may rely upon in making a determination" and that "[t]he wo rd 'positive' means ... that the 
evidence must be of an affirmative, objective and verifiable character, and that it must be credible."284  
We also recall that, in Thailand – H-Beams, the Appellate Body said that "Article 3.1 is an overarching provision that sets forth a Member's fundamental, subs tantive obligation" with respect to the injury 
determination, and that this ge neral obligation "informs the more  detailed obligations" in the 
remainder of Article 3.
285  Therefore, the question before us is whether Economía based its 
determinations regarding the volume of dumped imports from sources other than Guatemala and the 
effect of the dumped imports on prices in the domestic  market on information that has the quality of 
positive evidence. 
7.266  As discussed in detail at paragraphs 7.44 to 7.59 , supra, from the outset of the investigation, it 
was clear that the two tariff lines under which the investigated product was classified (7306.30.01 and 
7306.30.99) also covered other products. The Final Determination s hows that Economía was 
conscious of the need to distinguish the subj ect imports – both from Guatemala and from other 
sources – from imports of all other products en tering under the two relevant tariff lines.   
7.267  More specifically, in respect of import volum es, Economía relied on estimates derived from 
import statistics and samples of "pedimentos" and their underlying invoices.  By the final phase of the investigation, Economía had obt ained customs documentation and invoices covering nearly 100 per 
cent of the "investigated product" imported from Guatemala during the three six-month periods 
reviewed. 
                                                     
 
283Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.98;  Appellate Body Report, 
Mexico – Anti-Dumping Measures on Rice , para. 202. 
 
284Appellate Body Report, US – Hot-Rolled Steel , para. 192. 
 
285Appellate Body Report, Thailand – H-Beams , para. 106. 
 WT/DS331/R 
Page 90  
 
 7.268  Economía explained in the Final Determina tion how it established the volume of dumped 
imports of the subject product from Guatemala into Mexico.
286  In respect of the volume of subject 
imports from Guatemala, the Determ ination indicates that Economía: 
"... collected 31 copies of additional ‘ped imentos’ with their respective invoices 
corresponding to imports from the Republic  of Guatemala under TIGIE tariff items 
7306.30.01 and 7306.30.99, so  that together with the 312 in its possession in the 
preliminary stage, it had a total of 343 import pedimentos, 202 of which corresponded 
to import transactions in the period July-D ecember 2000, 137 to transactions in the 
same period of 1999 and 4 in the same seme ster of 1998;  these ‘pedimentos’ covered 
nearly 100 per cent of the volume imported  from the Republic of Guatemala for the 
period analysed."287   
7.269  On the basis of this information, Economía asserted:   
"According to the characteristics and specifica tions of the investigated product in the 
product likeness section of this Resolution, an analysis of the documentation gave the 
following results:  in the periods July-December of 1998, 1999 and 2000, 79, 66 and 
64 per cent of the import volume correspond, respectively, to investigated products, 
and the remaining percentages to non-inves tigated products.  In particular, in the 
period July-December 2000, of the volume identified as investigated products 82 per cent corresponded to pipe manufactured to standard ASTM A-53 and 89 per cent was 
schedule 40."
288 
7.270  In respect of imports of the product under i nvestigation under the two relevant tariff lines 
from countries other than  Guatemala, the Final Determination indicates:289 
"... the Ministry collected 599 copies of "p edimentos" with their respective invoices, 
corresponding to imports from countries ot her than the Republic of Guatemala under 
TIGIE tariff items 7306.30.01 and 7306.30.99, so that in all, including those of the preliminary stage, the IA was in possession of a total of 673 import ‘pedimentos’, 546 
of which corresponded to import transacti ons in the period July-December 2000, 79 
to transactions in the same period in 1999 and 48 in the same period in 1998;  these "pedimentos" covered respectively 48, 16 and 10 per cent of the total volume 
imported from sources other than the investig ated country in the periods indicated." 
7.271  To estimate the volume of imports of the investigated product from sources other than 
Guatemala, Economía applied the following methodology:   
"... for each period referred to, maximum and minimum prices were identified for the 
imports identified as investigated products, on the basis of the invoices and import ‘pedimentos’ reviewed. Then, on the basis of the SICMEX list of import 
‘pedimentos’, from the operations invol ving imports from sources other than 
Guatemala, those transactions were iden tified that fell within the minimum and 
                                                     
 
286 Exhibit GTM-23, Final Determination, paras.163-165.   See also paras. 120-121 of the Preliminary 
Determination in Exhibit GTM-10. 
 
287 Exhibit GTM-23, para. 164. 
 
288 Exhibit GTM-23, para. 165. 
 
289 Exhibit GTM-23, para. 166. 
 WT/DS331/R 
Page 91 
 
 
  maximum price range of the import opera tions identified as pipe subject to 
investigation."290 
7.272  On this basis, Economía estimated that in th e July-December periods of 1998, 1999 and 2000, 
the investigated products accounted for 81, 72 and 67 per cent of the total volume and 65, 58 and 
49 per cent of the total value of imports from c ountries other than Guatemala, respectively.    
7.273  Thus, in respect of imports from sources other than Guatemala, Economía obtained 
documentation covering not more than 48 per cent of the total imports under the relevant tariff 
categories during these periods.291  As we have already mentioned, from these documents Economía 
estimated the total import volume of the investig ated products from countries other than Guatemala 
by identifying the ranges of minimum and maximu m prices for the imports known to be of the 
relevant product, then assuming that all importe d products with prices within those ranges were 
investigated products.   
7.274  According to Guatemala, import figures are an  important component in the calculation of 
apparent domestic consumption, a nd Article 3.2 requires the volume effect of dumped imports to be 
assessed inter alia  against domestic production or consumption.   Therefore, according to Guatemala, 
both the IA's calculation of consumption, and its analysis of whether dumped imports had increased 
relative to consumption, were flawed.  Guatemala further argues that the IA should have based its 
analysis on evidence that was more "positive" or at least should have explaine d in its determinations 
why it was not possible to use 100 per cent of the customs documents, and why the sampling methodology that it used was reasonable. 
7.275  It is clear that, as argued by Guatemala, the volume of imports from countries other than 
Guatemala formed part of Economía's injury determ ination.  The Final Determination indicates that:  
"... in order to assess whether, in the peri od investigated, there was an increase in 
imports in relation to internal consumpt ion and domestic production, an estimate was 
done of the size of the Mexican market for the investigated pipe, on the basis of 
domestic production figures plus  imports less exports. Impor ts were calculated using 
the methodology described in points 163 to 169 of this Resolution."
292   
7.276  We note that, in the course of the investig ation, Tubac contested the validity of the 
methodology used by Economía in estimating the volume of imports from sources other than Guatemala.
293  Tubac also indicated, in the course of th e investigation, that it did not have the 
necessary information to offer an alternativ e estimate of the volume of such imports.294   
7.277  The parties' claims and arguments about the sa mpling and estimation techniques in respect of 
imports from sources other than Guatemala ra ise the question whether the methodology for 
calculating the volume of imports from sources othe r than Guatemala rested on sufficient evidence 
                                                      
290 Exhibit GTM-23, paras. 167 and 168. 
 
291 As indicated in the Final Determination, Exhibit GTM-23, para. 166, the coverage of the samples of 
customs documents and related invoices was 48 per cent for July-December 2000, 16 per cent for July-December 1999 and 10 per cent  for July-December 1998. 
 
292 Exhibit GTM-23, para. 173. 
 
293 Exhibit GTM-23, para. 159. 
 
294 Exhibit GTM-23, para. 161.  
 WT/DS331/R 
Page 92  
 
 and substantiated assumptions so as to constitute  positive evidence for the purposes of Articles 3.1 
and 3.2.  In particular, we must consider whethe r the use of this methodology – based on samples of 
48, 16 and 10 per cent of imports of the product from sources other than Guatemala in the three 
relevant periods of 2000, 1999 and 1998, respectivel y, and the application of a price range test - 
resulted in an injury analysis that was consistent  with the requirements under Articles 3.1 and 3.2 of 
the  Anti-Dumping Agreement   to conduct an objective examination based on positive evidence of the 
volume and price effects of the dumped imports.  
7.278  In considering the soundness of the methodology us ed by the IA in respect of the imports of 
the investigated product from sources other than Gu atemala, we recall the following statement of the 
Appellate Body:   
"... Articles 3.1 and 3.2 do not prescribe a methodology that must be followed by an 
investigating authority in conducting an injury analysis.  Consequently, an investigating authority enjoys a certain discretion in adopting a methodology to guide its injury analysis.  Within the bounds of th is discretion, it may be expected that an 
investigating authority might have to re ly on reasonable assumptions or draw 
inferences.  In doing so, however, the inv estigating authority must ensure that its 
determinations are based on ‘positive evidence’.  Thus, when, in an investigating 
authority's methodology, a determination rests upon assumptions, these assumptions should be derived as reasonable inferences from a credible basis of facts, and should be sufficiently explained so that their objectivity and credibility can be verified."
295 
7.279  Mindful of these considerations, we examine the soundness of the methodology applied by 
Mexico, in particular, the resort to the "pedimento " samples concerned and the application of the price 
range test.   
7.280  In respect of the "pedimento" samples, Mexico  opted to request such customs documentation 
from private sources, such as customs agents, instead  of from the presumably comprehensive official 
set of "pedimentos" in the hands of the Treasury ministry (another  Mexican government agency).  
Mexico replied as follows to the Panel's query as to why the IA (a Mexican government agency) 
resorted to seeking samples from private sources, instead of from  the other government agency and 
whether it would have been practicably impossible for Economía to have obtained the customs documentation concerned directly from "the office of the Treasury": 
"In our view the term ‘impossible’ is not the most apt.  What is true is that the 
Ministry has great difficulty in obtaining documentation from the offices of the 
Treasury, although the two are government agen cies.  The steps the Ministry takes to 
obtain the relevant information do not al ways achieve the best results, because the 
body from which the information is sought does not
 always respond. 
In practice, to ask for information in th e possession of the customs authorities would 
mean a very long delay in the investigati on as well as imposing a very considerable 
administrative burden.  In fact, this step  alone would have taken up a fairly long 
period and affected the time limits for the investigation, with the possibility , too, of not obtaining the information. It is for this  very reason that, in an attempt to obtain 
reliable and timely information so as meet  deadlines, the Ministry addresses requests 
for information to customs agents and impor ters.  However, the IA also lacks the 
authority to require customs agents or im porters to supply the information sought.  
                                                     
 
295 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 204.  
 WT/DS331/R 
Page 93 
 
 
  Even when it approaches these bodies, the Mini stry frequently fails to obtain all the 
information requested …".296 
By way of illustration, in a recent case (involving brushes from China), import 
‘pedimentos’ with the corresponding invoi ces were requested fro m the Treasury.  The 
latter took about three months to provide th e Mexican authority with 30 ‘pedimentos’ 
and their invoices (it is reasonable to suppose that the time taken would increase 
according to the Treasury office's workload at the time the request is made by the 
Mexican IA).  Another case in which there were  delays of this kind is that involving 
valves from the United States ...". 
7.281  Mexico further indicated that,  
"... as part of its administrative practice, when trying to obtain reliable and timely 
information so as to meet deadlines applyi ng under anti-dumping legislation, the IA 
normally addresses requests for information directly to customs agents and import companies (often interested parties), whic h likewise have the documentation for the 
imports but which nearly always take a r easonably shorter amount of time to respond 
than would the Treasury if asked to supply the information ...".
297 
7.282  From this, we understand that it would not have been physically or technically impossible for 
Mexico to have made a request to the Treasury Mi nistry for "pedimentos", but rather that it might 
have taken some time to receive the requested "ped imentos".  We recall the example given by Mexico 
of another recent case in which the SHCP t ook three months to produce certain requested 
"pedimentos".298  This does not convince us that the time required by Treasury to produce a 
comprehensive, or at least statistically robust, set  of "pedimentos" could not have been accommodated 
within the timeframe of the normal anti-dumping inv estigation.  We recall that Article 5.10 of the 
Anti-Dumping Agreement  provides:  "Investigations shall, except in special circumstances, be 
concluded within one year, and in no case more  than 18 months, after their initiation."  The 
investigation at issue lasted approximately 17 mont hs.  It seems to us that if Economía had made a 
request at or near the outset of the investigation, it could have received a comprehensive, or at least 
statistically robust, response well within the time-fram es of this investigation.  We would have vastly 
preferred that Economía acquire a comprehensive offici al data set – or at least a statistically robust 
sample – from the competent Mexican government agen cy.  We believe that such information would 
have been the best available source to calcu late volumes of imports from sources other than 
Guatemala.  However, we are aware that, for certa in Members, considerable periods of time may be 
needed in order to acquire such information fro m the competent government agencies, and that, for 
the purposes of conducting a timely investigation as required by the Agreement299, it may not always 
be possible to acquire such information from a govern ment source.  In any event, we do not consider 
that simply by not seeking inform ation from official government sources, Economía's analysis would 
necessarily be flawed.   
7.283  In respect of the limited "pedimento" samples of  varying magnitudes in question (i.e. 48, 16 
and 10 per cent), Mexico explains that Economía  was able to get almost 100 per cent of the 
"pedimentos" pertaining to imports from Guatemal a because the volume of such imports was not as 
                                                      
296 Mexico's response to question 72 from the Panel. 
 
297 Mexico's response to question 72 from the Panel. 
 
298 Exhibit MEX-4. 
 
299 In particular, Article 5.10. 
 WT/DS331/R 
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 high as the volumes of imports from sources other than Guatemala, and there were not very many 
transactions.  We are aware that the number of  import transactions from countries other than 
Guatemala was relatively high and that, as Mexico  argues, Economía requested a larger set of 
"pedimentos" than it finally obtained.
300  We nevertheless consider th at Economía should have better 
demonstrated or explained why it was not possible to obtain the actual figures using the "pedimentos" 
or at least to have obtained more comprehensive/better sampl es, in terms of magnitude and 
consistency over time.  The Preliminary Determination301 indicates that the IA anticipated receiving 
313 fiscal "pedimentos" from 59 customs agents, but that only 16 customs agents produced the 
requested information;  therefore, according to Me xico, the IA received only 22 per cent of what had 
hoped for.  The Final Determination indicates that "the Ministry sought additional information from 
several import companies and customs agents".302  Nevertheless, in light of the limited and 
inconsistent sample sizes available at the time of the Final Determination, there is no indication that 
Economía attempted to find another way to bolster th e robustness of its sample sizes, or reconcile its 
samples more comprehensively with the overall picture of imports from sources other than Guatemala.
303   
7.284  With respect to the price range test applied by Mexico to identify the product that it would 
take into account for the purposes of estimating the volume of imports from sources other than Guatemala, we observe that there is no explanatio n as to why this test would produce a systematic, 
reliable, or statistically valid result.  There is no substantiation of the price assumptions underlying 
this approach.  We note that Mexico admits th at "... for the imports from countries other than 
Guatemala, the documentation was to some extent li mited ... it is clear that the volume of the pipe 
under investigation was estimated using the me thodology of the maximum and minimum prices 
identified for the investigated pipe ...".
304  Mexico further asserted: 
"Considering that the volumes of the inv estigated pipe from countries other than 
Guatemala were the result of an estimate  made using maximum and minimum prices 
that the IA identified for import transactions  for the investigated pipe, on the strength 
of the documentation in its possession it is reasonable to assume that in fact non-
investigated products could have been include d or investigated pipe excluded. The IA 
nonetheless deemed the methodology to be th e most reasonable in the light of the 
documentation it had."305 
7.285  We consider that, taken together, the "pedimen to" sample sizes of 48, 16 and 10 per cent and 
the price range test that Economía applied to th ese imports from sources other than Guatemala are not 
sufficient to give a reliable, representative picture about imports from sources other than Guatemala.  
We therefore consider that Economía acted inc onsistently with Articles 3.1 and 3.2 of the  Anti-
Dumping Agreement   due to the limited magnitude and cons istency of samples, together with the 
                                                      
300 1720, 1752 and  2456 transactions for the 1998, 1999 and 2000 periods, respectively.   See Mexico's 
response to question 73 from the Panel;  Mexico's first written submission, para. 238. 
 
301 Exhibit GTM-10, para. 122. 
 
302 Exhibit GTM-23, para. 163. 
 
303 Article 55 of Mexico's Ley de Comercio Exterior, Exhibit GTM-14, indicates that Economía is 
entitled to ask for information from a wide range of sources, including producers, distributors, customs agents or 
any other person. 
 
304 Mexico's response to question 102 from the Panel. 
 
305 Mexico's rebuttal submission, para. 182. 
 WT/DS331/R 
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  unsubstantiated price range assumptions on which Econom ía relied to estimate the volume of subject 
products imported from countries other than Guatemal a.  An investigating authority that uses a 
methodology premised on a limited sample and un substantiated assumptions does not conduct an 
examination based on positive evidence.  An assu mption is not properly s ubstantiated when the 
investigating authority does not explain why it would be appropriate to use it in the analysis.  The 
assumption with respect to maximum and minimum price range to identify the investigated product 
on which Economía relied in its methodology play ed a role in its reasoning.  In the Final 
Determination, Economía did not explain why the use of limited samples of varying magnitudes, 
together with the price range test, was appropriate a nd credible in the analysis of the volume and price 
effects of the dumped imports, or how this met hodology would provide an accurate picture of the 
volume and price effects of the dumped imports.306 
7.286  We now consider Guatemala's further allegation that Economía assumed that the prices of the 
products imported from Guatemala and from all other countries were the same in all instances (i.e., 
that the minimum and maximum prices used to estimated import volumes for the "other" countries were for imports from Guatemala).  Mexico asserts  that this allegation is based on an incorrect 
reading of the Final Determination, and that the price range of the subject imports from Guatemala 
was not used to estimate the volume of the subject imports from the other countries.  Our review of 
the Final Determination persuades us that Gu atemala's allegation is factually erroneous.
307  I n  
particular, paragraphs 164 -165 of the Final Determination address "pedimentos" relating to imports 
from Guatemala.  By contrast, paragraphs 166- 169 address "pedimentos" corresponding to imports 
from sources other than Guatemala.  We have already cited th ese paragraphs above.308  They indicate 
to us that Economía resorted to the "ped imentos" pertaining to imports from sources other than 
Guatemala  in order to identify the minimum and maximum price range for those imports and to 
estimate the volume of those same imports (also w ith reference to SICMEX statistics pertaining to 
imports from those other sources).309  We therefore find that Guatemala has not established this 
element of its allegation pertaining to the methodol ogy applied by Economía to calculate imports 
from sources other than Guatemala.    
7.287  Guatemala argues that this situation before us  is essentially the same as the one found to 
violate Articles 3.1 and 3.2 in the Mexico - Anti-Dumping Measures on Rice  dispute, while Mexico 
asserts that there is little similarity.  We believe  the facts before us differ from those in the Mexico –
Rice case.  The differences include:  (i) in the pr esent case, the methodology in question was used to 
estimate import volumes for imports from countries ot her than Guatemala (a practically complete set 
of actual data derived from "pedimentos" being avai lable in respect of Guatemalan product), while in 
Rice the volume of dumped imports (including those from companies other than the participating 
                                                      
306 We find support for this approach in Appellate Body Report, Mexico - Anti-Dumping Measures on 
Rice, para. 205. 
 
307 See Exhibit GTM-23,  paras. 167 and 168. 
 
308 See supra , paras.7.268-7.271. 
 
309 Specifically, Exhibit GTM-23, paragraph 167 indi cates that the "pedimentos" concerned were 
"referred to in the previous point".  Paragraph 166 refers to "pedimentos" corresponding to imports from sources 
other than Guatemala.  See also Exhibit GTM-23, para. 168.  Exhibit GTM-23, para. 160, indicates that Tubac 
had made a similar allegation before Economía and that Economía's position on this was "... as indicated in 
points 122 to 126 of the preliminary resolution, account was taken of the minimum and maximum price of imports of pipe identified as subject to investigation from  countries other than Guatem ala, on the basis of import 
"pedimentos" supplied by customs agents;  these were the prices used to estimate the import volumes from other 
sources of the investigated product".  Moreover, paras. 184-186 of the Final Determination indicate Economía's view that the prices of imports from Guatemala were different from those of imports from other sources. 
 WT/DS331/R 
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 firms, and as opposed to those that were not dumped)  was estimated using a sampling technique;  (ii) 
in the present case, trends were not extrapolated fro m one period to another, but rather samples (albeit 
limited and of widely varying magnitudes) were available for each of the three six-month periods 
concerned.  That said, the basic conclusion of the Rice panel (upheld on appeal) – that the IA relied on 
unfounded assumptions in reaching its conclusions as to the volume effects of the subject imports– 
has a counterpart here in Economía's analysis of imports from sources other than Guatemala, 
especially given the low coverage of the sample for the six-month period in 2000 and the exceedingly 
low coverage of the samples for the 1998 and 1999 six-month periods, together with the inherent 
imprecision of identifying the relevant products on the basis of price ranges.   
7.288  For these reasons, we find that the methodology applied by Economía to estimate the volume 
of imports from sources other than Guatemal a – i.e. reliance on limited samples of varying 
magnitudes for the three relevant periods in 199 8, 1999 and 2000 as the basis for identifying the 
ranges of minimum and maximum prices for the impor ts known to be of the re levant product, and on 
the assumption that all imported products with prices within those ranges were investigated products –  
was inconsistent with the requireme nts of Articles 3.1 and 3.2 of the Anti-Dumping Agreement  to 
conduct an objective examination of positive evidence.  
(ii) Price effects 
 
7.289  Guatemala initially asserted that, in evaluating the price effects of the imports from 
Guatemala (and in particular the price of the imported product in the Mexican market), Economía 
used a sample of only 17 per cent of the total of  such imports for the period July-December 2000, and 
did not examine the 1998 and 1999 periods.  Acco rding to Guatemala, this resulted in an 
inconsistency with Artic les 3.1 and 3.2 of the Anti-Dumping Agreement .  Mexico disagreed with the 
factual premise of Guatemala's allegation, arguing th at the 17 per cent sample was used only for the 
purpose of estimating the charges for bringing the imported merchandise from the port of entry to the 
Mexican customer's warehouse (rath er than for the overall price of the imported product in the 
Mexican market).  In its oral statement at the first Panel meeting
310, Guatemala asserted that it was not 
clear from the Final Determination whether the 17 pe r cent sample pertained only to the charges for 
bringing the imported merchandise from the port of  entry to the Mexican customer's warehouse. 
Subsequently, in response to questioning from the Panel about this factual discrepancy, Guatemala 
maintained that even if the 17 pe r cent sample related only to certa in charges and not to the overall 
price information taken into account to calculate th e price of the imported product sold in the Mexican 
market, its allegation relating to non-representa tivity and the limitation to one six-month period 
remained valid.  In par ticular, Guatemala alleged: 
"... In Guatemala's view, Economía's argument is not a satisfactory response to the 
questions about its price analysis.  For exam ple, Guatemala takes issue with the fact 
that having collected import ‘pedimentos’  for 100 per cent of the imports from 
Guatemala, Mexico used only 17 per cent of the imports in calculating the price of 
the imported good after entry (assuming also that, as Mexico says, the 17 per cent of the sample refers solely to charges on imports ( gastos de internación )).  In its reply 
Mexico does not deny that Economía used onl y a part of all the information at its 
disposal – only the import charges for the purpose of calculating the total internal 
price of all the imported products.  Nor does Mexico deny Guatemala's assertion that 
although it had 100 per cent of the import ‘pedimentos’ for 1998 and 1999, it did not 
                                                     
 
310 Guatemala's first oral statement, para. 37. 
 WT/DS331/R 
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  determine the overall price ( precio nacionalizado ) for the imported product for 1998 
and 1999.  Economía's analysis is therefore wrong".311  (footnote omitted) 
7.290  The issues raised by the parties' argument s are addressed in paragraphs 186 and 190-194 of 
the Final Determination.  Paragraph 186 of th e Final Determination indicates how Economía 
calculated the prices of the investigated product:   
"... in order to estimate the prices for the pipe under investigation, the Ministry 
calculated the average prices of the imports from Guatemala and those from other sources of supply for the periods July -December 1998, 1999 and 2000 using the 
figures for value and volume of the total im ports recorded in the SICMEX, adjusted 
according to the methodology described in points 163 to 169 of this Resolution." 
7.291  Paragraph 190 of the Final Determination, whic h deals with the comparison of import prices 
and domestic prices, states:   
"In order to compare the price of imports from Guatemala with the domestic price, 
the Ministry added the value at point of en try of the investigated imports under tariff 
items 7306.30.01 and 7306.30.99, the corresponding tariff and customs fees and the 
import charges for taking the product to th e importer's warehouse during the period of 
investigation.  These latter  were calculated using the information supplied by the 
importers registered by SICMEX that r esponded to the investigating authority's 
request for information, including a number of Hylsa's customers.  This information 
for this stage of the investigation covered 17 per cent of the investigated imports from 
Guatemala in the period July-December 2000." (emphasis added)   
7.292  Paragraphs 191-194 of the Fi nal Determination state: 
"Furthermore, in order to estimate the pr ice of sale to the domestic market by 
domestic producers, delivered at their custom ers' warehouses, the Ministry considered 
only the information from the applicant and Tubería Nacional  regarding delivery at 
the customers' warehouses, since the other two domestic producers gave no 
information on these charges.  It is im portant to note that in the period of 
investigation, Tubería Nacional and Hyl sa together accounted for 85 per cent of 
domestic production of the investigated pipe. 
On the basis of what is indicated under the two previous points, the Ministry observed 
that in the period investigated, July-Dece mber 2000, the weighted average price of 
the investigated imports from Guatemala, delivered at the importer's warehouse, was 
13 per cent lower than the weighted averag e price at customer's warehouse of the 
producers referred to under the previous point. 
In addition, according to the section on price discrimination in this Resolution, in the 
period July-December 2000 imports from Gu atemala to the Mexican market of the 
investigated pipe under tariff items 7306.30.01 and 7306.30.99 entered with dumping 
margins of 29.92 and 35.26 per cent, respectively. 
On the basis of what is indicated in point s 182 to 193 of this Resolution, the Ministry 
determined that the behaviour of the inv estigated imports and the increase in their 
share of the Mexican market is a result of significant undercutting margins in relation 
to the domestic price and the imports from other sources, reflecting the dumping 
                                                     
 
311 Guatemala's response to question 79 from the Panel. WT/DS331/R 
Page 98  
 
 margins found; the increase in the imports and the conditions in which they were 
effected caused suppression of domestic prices." 
7.293  We find, as a matter of fact, that the text  of the Final Determination does not support 
Guatemala's principal allegation on this matter.  In  particular, we read paragraph 186 as describing 
how Economía established the prices of imports of the investigated product from Guatemala and from 
other sources (for the three six month periods in 1998, 1999 and 2000), while paragraph 190 deals 
with a comparison of prices of imported and domestic  products, and indicates elements going into this 
calculation, with an indication of the sample si ze relied upon.  Specifically, we read the phrase 
"[t]hese latter" in para. 190 of the Final Dete rmination as referring to charges for the imported 
merchandise from the port of entry to the Mexican cu stomer's warehouse, rather than to all of the 
elements relating to the price of the imported produc t from Guatemala.  As a result, the term "[t]his 
information" introducing the last sentence of this pa ragraph also refers to such charges.  We have 
doubts whether a sample of such magnitude could give  an accurate reflection of such charges, and we 
note that the information gathered relates only to the period from July-December 2000 (with no 
indication of developments in 1998  and 1999).  Nevertheless, we note the practical problems inherent 
in data collection in an anti-dumping investigation in relation to certain elements of the injury 
analysis, and Economía's experience in this respect (a s indicated in the Determination).  We find that 
the factual premise for Guatemala's principal allegation – i.e. that the 17 per cent sample from the six-month period in 2000 related to Economía's calculati on of the price of the imported product from 
Guatemala in Mexico rather than to only one co mponent element of that price ("import charges for 
delivery of the product to the importer's warehouse") – is erroneous.
312   
7.294  Guatemala only corrected its allegation in respect of the price effects of the imported product 
– that is, to state that even if the 17 per cent samp le related to only "import charges for delivery of the 
product to the importer's warehouse", an inconsistenc y nevertheless still resulted with Articles 3.1 and 
3.2 in relation to the calculation of the import price for only the period July-December 2000 – in 
response to a request for clarification from the Panel (we have cited their response above).   
7.295  We are mindful that it is not for the Pane l to establish the complainant's case for the 
complainant.313  In this respect, the limited (17 per cent) data in question was used to estimate only 
one adjustment in the process of calculating the re levant price of the imported product in the Mexican 
market for the purposes of the overall injury determination;  and Economía did calculate the "average 
prices of imports from Guatemala and from other s ources of supply for the periods July-December 
1998, 1999 and 2000" (i.e. for each of  the relevant periods over these three years) on the basis that we 
have outlined above.314  That is, the record indicates that Economía did resort to the virtually 100 per 
cent of the import "pedimentos" in respect of impor ts from Guatemala (as well as to that proportion of 
"pedimentos" that it had received in respect of imports from other sources for the purposes relating to 
estimating the value of the dumped imports) as outlined  in paragraph 186 of th e Final Determination; 
and Economía did outline problems it had experienced in respect of data collected from the domestic 
industry in relation to the price comparison.  Guatem ala did not substantiate before us why, despite 
the correction that it had to make in its argumentatio n before us, it still considered that calculating the 
adjusted price of imports from Guatemala onl y for the period July-December 2000 necessarily 
                                                      
312 In response to question 79 from the Panel, Guatemala maintained that even though the 17 per cent 
related only to certain charges and not to the ov erall price information, its allegation relating to 
non-representativity and the limitation to one six-month period remained valid. 
 
313 We find support for our view in, e.g., Appellate Body Report, Japan- Agricultural Products II , 
para. 129. 
 
314 Supra , para.7.290. 
 WT/DS331/R 
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  resulted in an inconsistency with Articles 3.1 and 3.2.315  We therefore find that Guatemala has failed 
to establish a prima facie  case of inconsistency with Articles 3.1 and 3.2 in this respect. 
5. Injury to the "domestic industry"316 
(a) Arguments of the parties 
(i) Guatemala 
7.296  Guatemala  argues that Economía's injury anal ysis was based on the selective and 
inconsistent use of information pertaining to the domestic industry.  Without  any proper explanation, 
Economía collected and relied upon data for part of its injury analysis referring to three of the 
four companies that constituted the domestic industry,  and for other parts of its  analysis, data referring 
to only one of those companies (that is, the petitioner).  
7.297  In Guatemala's view, the selective and incons istent gathering and analysis of factors 
indicating the state of the industry is contrary to the requirement in Article 3.1 to conduct an "objective examination" of "positive evidence", and consequently to the requirements Articles 3.2, 
3.4, 3.5 and 4.1. 
(ii) Mexico 
7.298  Mexico  argues that it complied with its obligations under Article 3.1 to conduct an "objective 
examination" of "positive evidence", and consequently  with those under Articles 3.2, 3.4, 3.5 and 4.1. 
Mexico asserts that Article 4.1 allows two mean ings for the term "domestic industry":  (i) the 
domestic producers "as a whole" or (ii) those who se collective output constitutes "a major proportion" 
of the total domestic production.  According to Me xico, an investigating authority can comply with 
the "domestic industry" requirement by using either of  those definitions, that is, by examining either 
the domestic producers "as a whole" or those who se collective output constitutes "a major proportion" 
of total domestic production.  Mexico turns to Artic le 5.4 to inform its interpretation of the "major 
proportion" element in Article 4.1, arguing that, if a producer alone satisfies the Article 5.4 threshold of 50 per cent of the domestic industry expressing s upport or opposition to the application, then an 
objective examination of injury factors may rely u pon data pertaining solely to that producer.   
7.299  In this case, Mexico contends, the data collect ed and analysed by Economía for the economic 
injury factors pertained to three firms acc ounting for 88 per cent of domestic production.  
Furthermore, as Hylsa accounted for 53 per cent of  the domestic industry, and the whole of the 
domestic industry supported the request for initiation,  Mexico argues that Economía was justified in 
collecting and relying upon financial injury da ta pertaining solely to the applicant.   
(b) Arguments of the third parties 
7.300  The European Communities  endorses Guatemala' s assessment that Economía's injury 
analysis, based on data relating to various combina tions of information from various firms comprising 
the domestic industry, was not coherent, and thus, in consistent with Article 3.1.  According to the 
                                                     
 
315 Guatemala did not, for example, further address or substantiate this allegation in its rebuttal 
submission, although it did further address its allegation relating to the methodology applied by Economía to 
analyse the volume of imports from  sources other than Guatemala. 
 
 316 In response to question 59 from the Panel, Guatemala confirmed to us that it no longer pursues any 
independent claim under Article 3.4 pertaining to Mexico's examination of the particular injury factors 
enumerated in that provision.   WT/DS331/R 
Page 100  
 
 European Communities, Mexico's Article 4.1 argumen t is not relevant, as Guatemala's allegation does 
not relate to the representativity of the data, but  rather to its incoherent and arbitrary use.  
(c) Factual background 
7.301  At the initiation phase, Economía defined the domes tic industry as consisting of four firms:  
Tuberías Procarsa, Tubería Nacional, Compañ ía Mexicana de Tubos ("CMT") and Hylsa.
317  For the 
purposes of the injury component of its Initiati on Determination, Economía  relied upon information 
from Hylsa pertaining to its own situation, as well as certain data pertaining to other firms in the 
domestic industry included in Hyl sa's petition (sourced from CANACERO")318, as well as SICMEX 
statistics.  More specifically, in terms of ec onomic injury indicators, Economía relied upon data 
supplied by Hylsa, and SICMEX statistics319 to analyse national apparent consumption320, as well as 
on data supplied by Hylsa sourced from CANACERO321, to analyse domestic production; total, 
domestic and export sales; installed capacity; and invent ories.  In terms of financial injury factors, 
Economía focused on the situation of Hylsa, based on  audited financial statem ents and data submitted 
by Hylsa322, while also focusing on the situation of Hylsa-DAT.323  More specifically,  
"... the Ministry calculated the percentage sh are of income from sales of standard pipe 
in the applicant's total sales in order to ascertain the influence of these sales on 
Hylsa's profits.  The investigating authority noted that the percentage share was 3 per 
cent in 1998, 1999 and 2000, which is why ther e was a preliminary determination that 
sales of the like product had little influence on the applicant's financial situation.   
For this stage of the investigation, the i nvestigating authority decided to conduct an 
analysis of the applicant's financial situ ation and the operating results of the like 
product for the years 1998 to 2000; it t ook into account Hylsa's audited basic 
financial statements for the years 1998 to 2000, the value and volume indicators and the statement of costs, sales and profits of  the like product for those same years, and 
the period of investigation and the two comp arable previous periods.  It should be 
noted that in the interests of financial compatibility, the Ministry updated the 
financial data using the changes in general price level method ...".
324 
7.302  In order to support the asserted deterior ation of Hylsa's financial situation325, Hylsa had also 
submitted:  
                                                      
317 Exhibit GTM-4, para. 82; Exhibit GTM-23, para. 131(B). 
 
318 Exhibit GTM-4, paras. 82-83.  In order to calculate the price in the Mexican market at the initiation 
phase, Economía based itself on the information submitted by the applicant on sales prices, sourced from 
CANACERO, as well as figures on its sales volume and value.  See Exhibit GTM-10, para. 111. 
 
319 Exhibit GTM-4, para. 116. 
 
320 Exhibit GTM-4, para. 118. 
 
321 Exhibit GTM-4, para. 119. 
 
322 Exhibit GTM-4, paras. 129-131, 132-154. 
 
323 Exhibit GTM-4, paras. 132-134. 
 
324 Exhibit GTM-4, paras. 130-131. 
 
325 Exhibit GTM-4, para. 133. WT/DS331/R 
Page 101 
 
 
  "… a statement of results entitled "Hylsa- DAT";  however, on the basis of the 
methodology described in the reply to the request addressed to it by the IA, and an 
analysis of the numerical operations in a wo rksheet entitled ‘Statement of costs, sales 
and profits of the domestic product’, submitted by the applicant, the Ministry 
concluded that the Hylsa-DAT statement of results, to which the applicant refers, 
actually corresponds to the operating results of  the like product.  It therefore decided 
at this stage of the investigation to evaluate only the results of the like product together with those of the applicant as a whole."
326 
7.303  On this basis, Economía analysed the operating profits of the applicant and of the "like 
product".  Economía also analysed the return on investment327; capital flow328; ability to raise 
capital329; other injury factors.330  On the basis of its analysis, the Secretaría concluded that initiation 
was warranted.331   
7.304  For the preliminary phase, Economía requested information from the three companies other 
than the applicant that constituted the domestic industry (Tuberías Procar sa, Tubería Nacional and 
Compañía Mexicana de Perfiles y Tubos)332 as well as from CANACERO.333  In particular, it 
requested information pertaining to the principal economic indicators of these companies for 1998, 
1999 and 2000.334,335  At this stage, Economía also requested  certain clarifications from the petitioner 
regarding its data on financial indicators.336 In particular: 
"... the inconsistencies between  the statement of results of Hylsa's Division of Steel 
Tubing furnished in the applicant's reply a nd the statement of costs, sales and profits 
of the like product supplied in answer to the ‘prevención’ (Annex 8) prompted the 
                                                                                                                                                                     
 
326 Exhibit GTM-4, para. 134. 
 
327 Exhibit GTM-4, paras. 140-146. 
 
328 Exhibit GTM-4, paras. 147-149. 
 
329 Exhibit GTM-4, paras. 150-154.  Economía also an alysed "threat of injury", not at issue in this 
dispute.  
 
330 Exhibit GTM-4, paras. 166-170.  
 
331 Exhibit GTM-4, para.  171.  
 
332 For the preliminary phase, CMT had been considered as CMPT.  Exhibit GTM-23, para. 131(A).  
 
333 Exhibit GTM-10, para. 39. 
 
334 Exhibit GTM-10, para. 105.  See Economía's request s for information, dated 17 December 2001, to 
Tuberías Procarsa, Tubería Nacional and Compañía Mexicana de Perfiles y Tubos.  These requests asked, in 
particular, for "information on the following economic indicators for black and galvanized standard pipe  
manufactured in 1998, 1999 and 2000:  production, sales to the domestic market, sales abroad, own consumption, inventories, employment, price of sale to the domestic market and installed production capacity 
…". 
 
335 Procarsa was the only company that did not respond to this request for information. Exhibit GTM-
10, para. 106. 
 
336 Exhibit GTM-10, para. 169. 
 WT/DS331/R 
Page 102  
 
 Ministry to seek clarification.  However,  the applicant's reply provided no certainty 
regarding the data in the statement of costs,  sales and profits of the like product.  The 
investigating authority therefore determin ed that the analysis of the financial 
variables referred to the narrower range of products, i.e. Hylsa's Division of Steel 
Tubing.  It is also clarified that the information the applicant supplied on that division 
is expressed in annual terms, so in the ne xt phase the Ministry will obtain information 
from Hylsa's Division of Steel Tubing corresponding to the period of investigation and comparable previous periods.  
The Ministry examined the applicant's fina ncial situation to determine whether there 
is any evidence allowing the c onclusion that the impact of the subject imports had a 
significant effect on the financial variables of the domestically manufactured like 
product, standard pipe.  For this purpose it took into account the applicant's audited 
basic financial statements for 1998 to 2000 , the economic indicators for both value 
and volume and the specific statement of r esults of Hylsa's Division of Steel Tubing 
which the applicant provided in annual terms.  For the sake of financial 
comparability, the Ministry updated the in formation using the changes in general 
price level method …".
337 
7.305  In its Preliminary Determinati on, Economía defined the domes tic industry as comprising four 
firms:  Tuberías Procarsa, Tubería Nacional, Compañía Mexicana de Tubos and Hylsa.338  In reaching 
its Preliminary Determination, Economía calcula ted the weighted average price of the domestic 
industry in the domestic market on the basis of info rmation furnished by Hylsa, Tubería Nacional and 
CANACERO.339  It also analysed certain economic indicators, inter alia :  national apparent 
consumption using information from Hylsa, the SICMEX and CANACERO340;  installed capacity 
figures using information of Hylsa and Tubería Nacional341; and inventories using information of 
Hylsa and Tubería Nacional.342  Concerning its analysis of the financial variables, Economía used 
financial information not only from Hylsa, but also from Hylsa's Division of Steel Tubing, Hylsa-
DAT, on the basis outlined above343  Economía concluded:   
"On the basis of the indications in points 165 to 181 of this Resolution, the Ministry 
concluded that the operating profits of Hyl sa and its Division of Steel Tubing showed 
a decline in 2000 because of the fall in total sales income.  This adversely affected the 
operating margin of the company and its Division of Steel Tubing, as well as the latter's return on investment and its contri bution to that return in 2000.  Hylsa was 
also adversely affected in terms of its  ability to raise capital given its reduced 
                                                     
 
337 Exhibit GTM-10, paras. 169-170. 
 
338 Exhibit GTM-10, para. 107. 
 
339 Exhibit GTM-10, para. 146. 
 
340 Exhibit GTM-10, paras. 150, 152 and 153. 
 
341 Exhibit GTM-10, para. 160. 
 
342 Exhibit GTM-10, para. 161. 
 
343 Exhibit GTM-10, paras. 169-170;  see paras. 171-182 for Economía's analysis of financial 
indicators. 
 WT/DS331/R 
Page 103 
 
 
  operating cash flow and operating profits, and its increased level of financial 
indebtedness."344  
7.306  For the purposes of its Final Determination, Ec onomía again requested information from the 
responding companies other than Hylsa (Tubería Nacional and Compañía Mexicana de Perfiles y Tubos) to corroborate whether the information on their economic indicators referred to the 
specifications, lengths, diameters and wall-thicknesses of the investigated product as it was defined at 
that time.
345  Economía also requested information from Compañía Mexicana de Tubos on its 
economic indicators corresponding to the specifications  length, diameters and wall-thicknesses of the 
investigated product as it was defined at that ti me.  The Final Determination indicates that, in 
response to this information request, Tubería Naciona l indicated that the economic injury data it had 
submitted pertained only to the product as defined (in schedules 30, 40 and 80) while Compañía 
Mexicana de Tubos indicated that it produced the product as defined only in schedule 40 and submitted economic injury data.
346 
7.307  In the Final Determination, Economía defined the domestic industry as consisting of four 
firms:  Tuberías Procarsa, Tubería Naciona l, Compañía Mexicana de Tubos and Hylsa.347   
7.308  In reaching its Final Determination, in respect  of economic injury factors, Economía used 
information of three companies:  Hylsa, T ubería Nacional and Compañía Mexicana de Tubos.348  
These companies together represented 88 per cent of the domestic industry.349  On this basis, 
Economía decided that the trends in these compan ies' economic factors were representative of the 
domestic industry.350  In particular, on the basis of this information, Economía analysed: 
• the national production oriented to the domestic market351, 
• sales to the domestic market352,  
                                                      
344 Exhibit GTM-10, para. 182. 
 
345 Exhibit GTM-23, para. 139 and Exhibit 18, (Oficio UPCI.310.03.1912/2 and Oficio 
UPCI.310.02.1867/2), respectively.  
 
346 Economía's treatment of CMT and CPMT somewhat confusing.  In any event, Economía explained 
that it had not received such information before this fi nal stage since Hylsa had furnished the wrong address for 
this company.  Exhibit GTM-23, para. 140 and Exhibit 18, (Oficio UPCI.310.02.1498/2).   Furthermore , CMPT 
indicated that it did not produce the product as defined.  Exhibit GTM-23, para. 142.  Economía further 
indicated in para. 145 that "… not a part of the domestic industry,  Compañía Mexicana de Perfiles y Tubos, 
which stated that it does not manufacture the product being investigated."  Thus, by the time of the Final 
Determination, CMT formed part of the domestic industry and CMPT did not. 
 
347 Exhibit GTM-23, para. 145. 
 
348 Exhibit GTM-23, para. 201.  The Final Determina tion also indicates, in para. 148, that, in the 
context of considering whether or not Hylsa had standing  to initiate the investigation, Economía observed that 
Hylsa had brought to its attention three other domestic pr oducers that produced "structural tubing manufactured 
to standard ASTM A500 in schedule 40".  Economía observed:  "However, the production of this tubing by 
these producers is not significant ...".  It is clear that these other domestic  producers were not included in the 
domestic industry as defined by Economía for the purposes of its injury determination. 
 
349 Exhibit GTM-23, para. 201. 
 
350 Exhibit GTM-23, para. 201. 
 
351 Exhibit GTM-23, para. 204. 
 WT/DS331/R 
Page 104  
 
 • domestic production for the export market
353, 
• installed capacity354, 
• inventories355, and 
• employment.356 
7.309  In respect of its analysis of financial injury  factors, Economía used information either for 
Hylsa (the company as a whole), and/or for Hylsa and its Division of Steel Tubing, Hylsa-DAT.  Economía had determined that "the applicant' s output accounted for a large part of domestic 
production, amounting to 53 per cent of domestic production of the investigated pipe".
357  Economía 
indicated: 
"For the purpose of the preliminary resoluti on, the Ministry decided to analyse the 
results of Hylsa-DAT and of the company as a whole on the basis of the information available.  At this phase of the investig ation, Hylsa provided the Ministry with a 
statement of costs, sales and profits, but it does not tally with the sales in value 
recorded in the company's indicat ors for the investigated product. 
Also at this phase of the investigation, Hyl sa provided the statements of results of the 
Division of Steel Tubing (Hylsa-DAT) for the first and second semesters of 1998, 1999 and 2000, and the Ministry deemed these ad equate for an analysis of the profits 
and profitability of the Division of Steel Tubing.  
Taking account of the information set out in the point above and Hylsa's audited basic 
financial statements for 1998 to 2000, th e value and volume economic indicators, and 
the statement of costs, sales and profits of  the like product for those same years, the 
Ministry carried out an examination of the financial situation of the applicant 
company Hylsa for the years 1998 to 2000 and of Hylsa-DAT for those same years and the period of investigation and two comparable previous periods; the latter 
information pertained to the more restrict ed range, which included the like domestic 
product."
358  
7.310  Thus, for the analysis of the ability to rai se capital Economía used information for Hylsa359, 
and for the following indicators, Economía used information for both Hylsa-DAT and Hylsa: 
• profits360, 
                                                                                                                                                                     
352 Exhibit GTM-23, paras. 205 and 206. 
 
353 Exhibit GTM-23, para. 207. 
 
354 Exhibit GTM-23, paras. 208 and 209. 
 
355 Exhibit GTM-23, para. 210. 
 
356 Exhibit GTM-23, para. 210. 
 
357 Exhibit GTM-23, para. 146.  
 
358 Exhibit GTM-23, paras. 214-216. 
 
359 Exhibit GTM-23, paras. 234 to 236. 
 
360 Exhibit GTM-23, paras. 218, 221 to 224. WT/DS331/R 
Page 105 
 
 
  • return on investment 361, and 
• cash-flow.362  
7.311  In terms of the data pertaining to Hylsa and Hylsa-DAT, respectively, Economía stated:   
"Based on the foregoing, below are the results  of the examination of the financial 
situation of the company Hylsa and of the Division of Steel Tubing.   
The Ministry calculated the share of the in come generated by the total sales of the 
investigated tubing in the income of Hy lsa-DAT, the result of this exercise showed 
that in 1998 it amounted to 37 per cent, and to 36 and 33 per cent in 1999 and 2000 respectively.  The Ministry accordingly determ ined that sales of the investigated pipe 
have a significant influence on Hylsa-DAT's fina ncial situation.  It further determined 
that the total income of the Division of Steel Tubing amounted on average to an 8 per cent share of the applicant company's total sales between 1998 and 2000".
363 
7.312  Mexico confirmed to us that Economía did not request, at any time during the investigation, 
information on the financial indicators of any of th e companies that composed the domestic industry, 
other than Hylsa (and, within Hylsa, its division Hylsa-DAT).364  
(d) Evaluation by the Panel 
7.313  Based on the parties' evidence and arguments, the question before us is whether Economía 
made an objective examination based on positive ev idence, as required by Articles 3.1, 3.2, 3.4 and 
3.5, in its collection and evaluation of data pertaini ng to injury to the "domestic industry" as that term 
is defined in Article 4.1.   
7.314  Economía defined the domestic industry for the purposes of the Final Determination365 as 
being constituted of four firms:  Hylsa, Tuberías Procarsa, Tubería Nacional y Compañía Mexicana de Tubos.  This was the domestic industry defined by Economía for the purposes of the injury 
analysis.
366  However, Economía's analysis of the econom ic and financial indicators was based on sets 
                                                      
361 Exhibit GTM-23, paras. 218, 225 and 226. 
 
362 Exhibit GTM-23, paras. 218, 227 to 233. 
 
363 Exhibit GTM-23, paras. 219-220. 
 
364 Mexico's response to question 64 from the Panel.  
 
365 Exhibit GTM-23, para. 145. Definition of domestic industry at initiation phase: Exhibit GTM-4, 
para. 82;  definition of domestic industry at Preliminary Determination phase: Exhibit GTM-10, para. 107. 
 
366 Economía had concluded, in its Final Determination analysis of "standing" for the purpose of 
initiation of the investigation, that three other domestic pr oducers (who had not participated in the investigation 
but had been brought to Economía's attention by Hylsa at the final stage of the investigation) had "not 
significant" production of "structural tubing manufactured using standard ASTM A500 in schedule 40".  Having found that the production of these non-participating companies was "not significant", Economía did not include 
their production as part of the domestic industry in its in jury analysis.  Referring to  these three non -participating 
companies, Economía stated "... in this phase of the investigation, as well as the companies that make up the 
major part of domestic production of the investigated tubing ..." (emphasis added), implying that the domestic 
industry it defined for the purposes of its injury investigation was a major proportion of domestic production, 
rather than the domestic industry "as a whole".  In Economía's view, inclusion of these producers would not have materially changed its view that the "standing" requirement for initiation was fulfilled, or that Hylsa 
accounted for "a major proportion" (" una parte importante ") of domestic production.  See paras. 148-149 of WT/DS331/R 
Page 106  
 
 of information that at no point referred to the w hole industry as this had been defined by Economía.  
For the purpose of the injury analysis in the Fi nal Determination, Economía  relied upon information 
on the economic indicators of three firms constituting 88 per cent of the domestic industry.
367  
Regarding financial informati on, Economía only sought and relied upon information accounting for 
53 per cent of the domestic industry, from Hylsa and/or its Tubing Division, Hylsa-DAT.368 
7.315  Therefore, the specific issue that arises befo re us on the facts of this case is whether 
Economía's collection and reliance upon economic inju ry data relating to three firms constituting 
88 per cent of national production, and financial injury data pertai ning to only one firm constituting 
53 per cent of national production was consistent with Mexico's obliga tions under Articles 3.1, 3.2, 
3.4 and 3.5 concerning the determination of injury to the "domestic industry" as that term is defined in 
Article 4.1.  
7.316  At the outset, we wish to emphasize our understandi ng that the issue before us, as raised by 
Guatemala, does not include the consistency with the c ited provisions of Economía's reliance upon 
financial injury data pertaining to both Hylsa and Hylsa-DAT.  In our view, Economía's reliance on 
data of both Hylsa and Hylsa-DAT could introduce cons iderable distortions into the injury analysis, as 
the record indicates that Hylsa- DAT revenue accounted for 8 per cent of Hylsa's total sales from 
1998-2000.369  The record further indicates that Ec onomía considered Hylsa and Hylsa-DAT's 
information together  for the purposes of its financial injury  analysis.  Apart from indicating that 
Economía analysed the financial information of Hy lsa and Hylsa-DAT in accordance with standard 
accounting principles370, we find no clear indication in the record as to how Economía ensured that it 
took Hylsa-DAT's financial performance into account only once, that is, on its own, and not also 
again as part of Hylsa's overall financial performance.   Mexico has certainly not clarified how and the 
extent to which Economía reduced the possibility of  "double-counting" of Hylsa-DAT's experience as 
part of the domestic industry.  We are left unc lear as to how the experience of Hylsa-DAT, which 
accounted for a relatively small proportion of Hylsa' s overall sales, could have been reflective of 
Hylsa's overall situation.371  However, although Guatemala mak es reference to the use by Economía 
of various combinations of companies as sources of  information, it does not specifically identify the 
use of Hylsa and/or Hylsa-DAT's information as a specific issue for our consideration.372  
                                                                                                                                                                     
Exhibit GTM-23, the Final Determination.  The proportion of the "domestic industry" – as this was defined by 
Economía – accounted for by Hylsa was the main basis fo r Mexico's argument before us that Economía was 
entitled to seek out financial injury data only from Hylsa (and Hylsa-DAT), and not from the other firms 
constituting the "domestic industry" as this had been defined by Economía.  For this reason, we do not consider 
that Economía's treatment of these three producers with production that was "not significant" materially affects 
our analysis here.  That is, whether the domestic industry, as defined by Economía, at the outset constituted the 
domestic industry "as a whole" or "a major proportion th ereof" does not change the nature of our analysis, 
which focuses on the treatment of this "domestic industry" – once this had been defined by Economía for the 
purposes of its injury analysis.  We note, in an y event, that Guatemala has not challenged Economía's definition 
of the domestic industry used for the purposes of its injury analysis. 
 
367 Exhibit GTM-23, para. 201. 
 
368 Exhibit GTM-23, paras. 215 and 216. 
 
369 Response to question 81 from the Panel. 
 
370 Exhibit GTM-23, para. 217. 
 
371 See, for example, Exhi bit GTM-23, para. 238. 
 
372 See, for example, Guatemala's first written submission, paras. 276-277; Guatemala's response to 
question 168 from the Panel; Guatemala's rebuttal submission , e.g. para. 133.  In para. 277 of its first written 
submission, Guatemala asserts:  "... while the financia l performance of the applicant and of Hylsa-DAT is WT/DS331/R 
Page 107 
 
 
  Accordingly, our findings below are without prejudice to our views on this issue.  As regards Hylsa 
and Hylsa-DAT, the issue before us focuses upon th e consistency with the cited provisions of 
Economía's approach in seeking a nd relying upon data relating to no more than  53 per cent of the 
domestic industry for the purposes of its analysis of financial indicators in its injury analysis.   
7.317  In addressing the issue before us, we first cons ider Mexico's main justification for Economía's 
approach.   
7.318  Mexico argues that, in respect of the various  injury factors, Economía was justified in 
examining data relating either to all (or almost all) of the domestic industry, or to "a major 
proportion" thereof.373  According to Mexico, this was consistent with the Article 4.1 definition of 
"domestic industry", as either  the totality or "a major proportion" thereof.  Regarding the analysis of 
economic injury indicators, Mexico argues that the use of data from three firms covering 88 per cent 
of national production was "represent ative" of the domestic industry.374  In respect of the "major 
proportion" element, Mexico invokes Article 5.4 of the Anti-Dumping Agreement , which sets out the 
"standing" rule and threshold per centages for initiation of an inves tigation "by or on behalf of the 
domestic industry".  According to Mexico, because Hylsa alone represented 53 per cent of the 
domestic industry – that is, more than the 50 per cen t threshold set out in Article 5.4 –  then an 
objective examination of injury factors could rely  upon data pertaining solely to that producer.375  In 
Mexico's view, this is sufficient to consider that th e result of such an analysis reflects the situation of 
the domestic industry.376   
7.319  Guatemala counter-argues that Article 5.4 relat es to the "standing" requirement to initiate an 
investigation whereas Article 4.1 defines the meaning of "domestic industry" "for the purposes of the 
Agreement". 
7.320  We recall the relevant legal framework for our anal ysis.  We have already cited the text of the 
relevant provisions of Article 3 a nd of Article 4.1 above.  Article 3. 1 requires that a determination of 
injury shall be based on pos itive evidence and involve an objective examination of, inter  alia, the 
impact of the dumped imports on the domestic produ cers of the like product.  Article 3.4 provides for 
an examination of "the impact of the dumped imports on the domestic industry  concerned shall 
include an evaluation of all relevant economic factors and indices having a bearing on the state of the 
[domestic] industry ..." (emphasis added) and Article 3.5 states that "It must be demonstrated that the 
dumped imports are, through the effects of dumping, as set forth in paragraphs 2 and 4 , causing 
injury...to the domestic industry " (emphasis added).  The focus of an injury determination is thus the 
state of the " domestic industry ", as that term is defined in Article 4.1.  The title of Article 4 of the 
Anti-Dumping Agreement is "Definition of domestic industry". The term "domestic industry" is 
defined in Article 4.1, which reads, in part: 
                                                                                                                                                                     
relevant to assessing injury, equally important is the financial performance of the other components of the 
domestic industry and the domestic industry as a whole …". 
 From this assertion, we understand Guatemala's co mplaint to be primarily focused on the fact that 
Economía did not seek out financial injury data from domestic firms other than Hylsa/Hylsa-DAT. 
 
373 For example, response to question 66 from the Panel. 
 
374 Exhibit GTM-23, para. 201. 
 
375 Response to questions 67 from the Panel and Mexico first written submission, para. 213. 
 
376 Response to questions 67 from the Panel and Mexico first written submission, para. 216. 
 WT/DS331/R 
Page 108  
 
 "For the purposes of this Agreement, the term  "domestic industry" shall be interpreted 
as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products ...". 
7.321  The provision in Article 4.1 and footnote 9, wh ich defines injury as "material injury to a 
domestic industry,[…] interpreted in accordance with the provisions of [this] Article [3]", inescapably 
requires the conclusion that the domestic industry w ith respect to which injury is considered and 
determined must be the domestic industry as defined in accordance with Article 4.1.
377 It follows that 
an anti-dumping injury determination is, in fact, a determination that the domestic producers "as a 
whole", or a "major proportion" of them, are "injur ed". Indeed, the concept of "domestic industry" is 
critical to an injury determination, as it defines the framework for data collection and analysis.   
7.322  Article 4.1 defines the domestic industry in two ways, either as "referring to the domestic 
producers as a whole of the like products" or "to those of them whose collective output of the 
products constitutes a major proportion of the total domestic production of tho se products".  The text 
of Article 4.1 indicates no hierarchy of preference between these two options.  However, this does not 
lead us to conclude that an investigating authorit y is permitted to switch back and forth between these 
two possibilities in the course of a single injury an alysis (or to oscillate back and forth between 
various allegedly "major proportions" of the domes tic industry in the course of the same injury 
analysis).  Article 4.1, and in particular the term  "a major proportion", permits a degree of flexibility 
in defining the domestic industry or "major proporti on" thereof, but once an investigating authority 
has identified the framewo rk for its analysis - whether an entire domestic industry or a major 
proportion thereof - it must use this identified frame work consistently and coherently throughout an 
investigation.   
7.323  Article 5.4 reads:   
"An investigation shall not be initiated pur suant to paragraph 1 unless the authorities 
have determined, on the basis of an exam ination of the degree of support for, or 
opposition to, the application expressed by domestic producers of the like product, 
that the application has been made by or on behalf of the domestic industry.  The 
application shall be considered to have been made "by or on 
behalf of the domestic industry" if it is  supported by those domestic producers whose 
collective output constitutes more than 50 pe r cent of the total production of the like 
product produced by that portion of the domestic industry expressing either support 
for or opposition to the application.  Ho wever, no investigation shall be initiated 
when domestic producers expressly suppor ting the application account for less 
than 25 per cent of total production of the like product produced by the domestic industry." (footnotes omitted) 
7.324  The introductory clause of Article 4.1 indicates that the definition of "domestic industry" 
applies "[f]or the purposes of this Agreement ", i.e. throughout the Agreement.  It would therefore also 
define the term "domestic industry" as used in Ar ticle 5.4.  Article 5.4 commences with the phrase:  
"An investigation shall not be initiated pursuant to  paragraph 1 unless ...".  This is a clear textual 
indication that Article 5.4 sets out a fundamental requirement that must be respected in initiating  an 
investigation.
378  However, as we have concluded that Ar ticle 4.1 does not permit an investigating 
                                                      
377 We note that the Panel Report, Mexico - Corn Syrup, para. 7.147, expressed a similar view.    
 
378 The importance of this initiation requirement has been consistently highlighted in WTO dispute 
settlement.  E.g. Appellate Body Report, US – Offset Act (Byrd Amendment)  paras. 282, 289;  Panel Report, US 
– 1916 Act (Japan) , para. 6.261 (upheld on appeal). WT/DS331/R 
Page 109 
 
 
  authority in the course of a single injury analysis to switch back and forth between the two possible 
definitions of "domestic industry" – i.e. (i) the do mestic producers as a whole of the like products;  or 
(ii) those of them whose collective output of the products constitutes a major proportion of the total 
domestic production of those products – we do not believe that Article 5.4 is strictly germane to the 
issue before us. This is because the issue raised by Guatemala's claim is not the definition of the 
domestic industry per se , or the identification of "a major proportion of" the domestic industry as the 
"domestic industry" for the purposes of the injury an alysis.  Rather, Guatemala's claim relates to the 
consistency and representativeness of the data set reli ed upon by Economía in its analysis of the state 
of the domestic industry, as this  had been defined by Economía.379  We therefore reject the relevance 
of the legal premise underlying Mexico's argu ment pertaining to Articles 4.1 and 5.4. 
7.325  We turn to the issue raised by Guatemala that Mexico violated Article 3.1 and other relevant 
obligations in Article 3 as it did not use a consis tent and representative data-set pertaining to the 
"domestic industry", as this was defined by Economía, in conducting its injury analysis.  Within this 
context, we consider whether Economía's collec tion and reliance upon economic  injury data relating 
to three firms constituting 88 per cent of national pro duction, and financial inju ry data pertaining to 
only one firm constituting 53 per cent of national production was consiste nt with Mexico's obligations 
under Articles 3.1, 3.2, 3.4 and 3.5 concerning injury to the "domestic industry" as that term is defined 
in Article 4.1. 
7.326  We are of the view that once an investiga ting authority defines which entities comprise the 
domestic industry that will form the basis for its injury analysis, it should seek and use a consistent 
data-set reflecting the performance of those entities.  We understand that, in practice, an investigating 
authority could have partial information to start an  investigation, which might then be supplemented 
as the investigation proceeds.  An investigating au thority may also be con fronted with problematic 
incomplete data furnished by one or more dom estic producers.  In such a case, it should request 
supplementary information, or, if that is not  practicable, resort to a reasonable estimation 
methodology which will yield results that are reflective of the state of the domestic industry.  This is 
because the requirement is to determine whether th e domestic industry, as defined, is injured by 
dumped imports or not.   
7.327  The requirement for an investigating authorit y to conduct an "objective examination" of 
"positive evidence" under Article 3.1 means that it ca nnot examine parts of a domestic industry on an 
inconsistent, arbitrary or selective basis.  We reca ll the following statement of the Appellate Body in 
US-Hot-Rolled Steel :   
"We have already stated that it may be highly pertinent for 
investigating authorities to examine a domestic industry by part, sector or segment.  However, as with all other aspects of the evaluation of the domestic industry, Article 3.1 of the  Anti-Dumping 
Agreement   requires that such a sectoral examination be conducted in 
an "objective" manner.  In our view, this requirement means that, 
where investigating authorities undert ake an examination of one part 
of a domestic industry, they should, in principle, examine, in like manner, all of the other parts that make up the industry, as well as examine the industry as a whole.  Or, in the alternative, the investigating authorities should provide a satisfactory explanation as 
to why it is not necessary to examine directly or specifically the other 
parts of the domestic industry.  Different parts of an industry may 
                                                     
 
379 See, for example, Guatemala's first written submi ssion, para. 270.  Guatemala asserted that, having 
defined the domestic industry as consisting of four firm s, Economía should have based itself on the economic 
situation of these four firms. WT/DS331/R 
Page 110  
 
 exhibit quite different economic  performance during any given 
period.  Some parts may be performing well, while others are performing poorly.  To examine only the poorly performing parts of an industry, even if coupled with an examination of the whole industry, may give a misleading impression of the data relating to the 
industry as a whole, and may overl ook positive developments in 
other parts of the industry.  Such an examination may result in highlighting the negative data in the poorly performing part, without drawing attention to the positive data  in other parts of the industry.  
We note that the reverse may also be true – to examine only the parts 
of an industry which are performing well may lead to overlooking the 
significance of deteriorating performance in other parts of the industry.  
Moreover, by examining only one part of an industry, the 
investigating authorities may fail properly to appreciate the economic 
relationship between that part of the industry and the other parts of 
the industry, or between one or more of those parts and the whole industry.  For instance, we can envisage that an industry, with two parts, may be overall in mild recession, where one part is performing very poorly and the other part is perfo rming very well.  It may be that 
the relationship between the two parts is such that the healthier part 
will lead the other part, and the industry as a whole, out of recession.  
Alternatively, the healthy part may follow the other part, and the industry as a whole, into recession.  
Accordingly, an examination of only certain parts of a domestic 
industry does not ensure a proper evaluation of the state of the 
domestic industry as a whole, and does not, therefore, satisfy the 
requirements of "objectiv[ity]" in Article 3.1 of the  Anti-Dumping 
Agreement ." 
380 
7.328  We are of the view that the Article 3.1 requi rement to base a determination of injury on 
positive evidence and pursuant to an objective ex amination imposes certain obligations on an 
investigating authority with regard  to the consistency of the data collected and relied upon as the basis 
for its determination.  In brief, examining only a part of the industry as defined by the investigating 
authority is not an objective examination of pos itive evidence since it is not representative of the 
overall state of the domestic industry.  The use of a consistent and representative data set will best 
reflect the state of the domestic industry for the purpo ses of an injury analysis.  We thus disagree with 
Mexico's view that an IA may opt to limit its coll ection and evaluation of data in respect of certain 
injury factors to only a certain part of the domestic industry as defined by it for the purposes of its 
injury analysis.    
7.329  Mindful of these considerations, we believe that  Economía was required, by the explicit terms 
of the Anti-Dumping Agreement , to determine the question of injury  on the basis of a consistent data 
set reflective of the state of the domestic industry, as it had defined it.   
7.330  We recall the relevant facts that we have ou tlined above.  For the Final Determination, in 
respect of economic injury factors, Economía sought and relied upon data pertaining to three 
                                                      
380 Appellate Body Report, US-Hot-Rolled Steel , paras. 204-206.  See also Panel Report, Mexico – 
Corn Syrup , para. 7.154. 
 WT/DS331/R 
Page 111 
 
 
  companies:  Hylsa/Hylsa-DAT, Tubería Nacional and Compañía Mexicana de Tubos.381  These 
companies together represented 88 per cent of the domestic industry.382  In particular, on the basis of 
this information, Economía analysed and drew conc lusions about the state of the domestic industry in 
respect of:  the national production oriented to the domestic market383, sales to the domestic market384, 
domestic production for the export market385, installed capacity386, inventories387, and employment.388 
7.331  However, in respect of its analysis of financ ial injury factors, Economía used information 
only for the applicant (either for Hylsa SA  or for Hylsa and its Division of Steel Tubing, Hylsa-
DAT).  In particular, for the analysis of the ability  to raise capital Economía used information for the 
company as a whole389, and for the following indicators, Economía used information for both 
Hylsa-DAT and Hylsa:  profits390, return on investment391, and cash-flow.392  Mexico confirmed to us 
that Economía did not request, at any time during th e investigation, information on the financial 
indicators of any of the companies that composed the domestic industry, other than Hylsa/Hylsa-DAT, as it did not consider this to be necessary.
393  We recall and underline our view already 
expressed above that Economía's reliance on data  of both Hylsa and Hylsa-DAT could introduce 
considerable distortions into the injury analys is, as the record indicates that Hylsa-DAT revenue 
accounted for 8 per cent of Hylsa's total sales from 1998-2000.  However, we again observe that this 
particular issue is not specifically before us. 
7.332  Thus, in respect of the economic injury factors, Economía sought information from four 
companies and received and analysed information from three companies constituting 88 per cent of 
the domestic industry.  We are of the view that, under these circumstances, the use of such data might 
have been reflective of the state of the domestic i ndustry in respect of those factors.  However, in 
respect of the financial indicators, we emphasize that Economía did not even attempt  to seek 
information from other firms constituting the domestic industry as Economía had defined it.394  We 
consider that Economía acted incons istently with its injury analysis obligations under Article 3 in 
treating the partial financial data  that it sought, acquired and anal ysed as a sufficient basis for its 
                                                      
381 Exhibit GTM-23, para. 201. 
 
382 Exhibit GTM-23, para. 201. 
 
383 Exhibit GTM-23, para. 204. 
 
384 Exhibit GTM-23, paras. 205 and 206. 
 
385 Exhibit GTM-23, para. 207. 
 
386 Exhibit GTM-23, paras. 208 and 209. 
 
387 Exhibit GTM-23, para. 210. 
 
388 Exhibit GTM-23, para. 210. 
 
389 Exhibit GTM-23, paras. 234 to 236. 
 
390 Exhibit GTM-23, paras. 221 to 224. 
 
391 Exhibit GTM-23, paras. 225 and 226. 
 
392 Exhibit GTM-23, paras. 227 to 233. 
 
393 Response to question 64 from the Panel. 
 
394 Response to question 64 from the Panel. WT/DS331/R 
Page 112  
 
 determination in respect of such factors, and as a component of its overall injury analysis.  Among 
other things, there was no assessment as to how, or th e extent to which, Hylsa's financial performance 
was reflective of, or better or worse than, the financia l state of the rest of the domestic industry, as this 
had been defined by Economía.  Furthermore,  Mexico has failed to provide any acceptable 
justification regarding these gaps in the informa tion sought and received and then analysed in its 
injury investigation.  We note that there were  only four firms comprising the domestic industry as 
defined by Economía for the purposes of its injury analysis; in our view it would not have been 
impracticable for Economía to have acquired fi nancial injury data from the remaining firms 
constituting the domestic industr y as defined by Economía. 
7.333  We therefore conclude that Economía failed to  conduct an objective examination on the basis 
of positive evidence, as required by Article 3.1, of injury to the domestic industry as that term is 
defined in Article 4.1, and consequently also violat ed Articles 3.2, 3.4 and 3.5, by failing to gather 
and analyse representative and consistent data pertai ning to the domestic industry, in particular the 
data concerning the financial indicators of the "domestic industry", as defined by it. 
6. Article 3 claims relating to the scope of the investigated product/like product 
(a) Arguments of the parties 
(i) Guatemala 
7.334  Guatemala asserts that changes in the defi nition of the product under investigation/like 
product in the course of the investigation rendered the determinations of injury (and causal link) 
inconsistent with Articles 3.1, 3.2, 3.4, 3.5 , 4.1 and 5.4. 
(ii) Mexico 
7.335  Mexico  asserts that an IA has discretion to determine the scope of the product under 
investigation and that Economía properly did so a nd complied with its obligations under Articles 3.1, 
3.2, 3.4, 3.5, 4.1 and 5.4 relating to the determin ation of injury to the domestic industry (and causal 
link).  
(b) Arguments of the third parties 
7.336  The European Communities  supports Guatemala's claim on th e implications of the product 
definition.  In particular, a change in the prod uct definition in the Preliminary Determination (as 
happened in this case) means that the information in the questionnaires that have been submitted is 
incomplete, and the problem becomes worse wher e the change is only announced in the Final 
Determination (as also happened here) – the data on which the determination is based have not been 
subject to the investigative process.   
7.337  Japan  also supports Guatemala's arguments about th e implications of the product definition 
(and changes thereto) for the injury determination:  if the definition of the investigated product is 
changed during an investigation, then the injury in vestigation also must be conducted on that revised 
basis.   
7.338  The United States  generally agrees with Japan's obser vation that the Agreement permits 
changes to the definition of the product under investig ation, but the IA must be cognizant of the broad 
implications of such changes.  WT/DS331/R 
Page 113 
 
 
  (c) Evaluation by the Panel 
7.339  We address here Guatemala's allegation that the change in the definition of the product under 
investigation/like product in the course of the i nvestigation to include tubing of 4"-6" and certain 
structural tubing rendered the determinations of inju ry (and causal link) inconsistent with Articles 3.1, 
3.2, 3.4, 3.5, 4.1 and 5.4 as there could not have  been a valid assessment of the volume and price 
effects of the imported  product under consideration on the " domestic industry".  According to 
Guatemala, Economía lacked the evidentiary basi s to conduct an objective examination of positive 
evidence and did not adequately explain how informa tion which it allegedly lacked in respect of the 
products added to the scope of the definition had been  taken into account in its injury analysis.  We 
underline that Guatemala's argumentation concentrat es on the alleged failure by Economía to gather 
and analyse evidence pertaining to the products falling within the product scope following the two 
adjustments to include tubing of 4"-6" and certain structural tubing in the product scope.395  
Furthermore, in response to Panel questioning, on  its claim under Article 6.2, Guatemala clarified 
that:  
"the claim is based on the way in which Economía  made various changes to the definition of 
the product at issue so as to include, at a late stage of the investigation, additional products 
which were originally excluded, without an y positive evidence on these products and without 
having made any attempt to satisfy itself that  they were properly investigated.  Guatemala 
accordingly has reiterated that its allegation is not concerned with  whether or not the products 
originally defined by Economía are similar to the products that were included in the definition 
at a late stage …".396 (footnote omitted) 
7.340  We therefore understand that Guatemala makes no allegation in respect of any "dissimilarity" 
between the scope of the product under investigati on, on the one hand, and of the like product, on the 
other.397  
7.341  We have set out a bove the factual background of the change in the definition of the product in 
the course of the investigation to include tubing from 4"-6" and certain structural tubing398, and our 
factual findings in that regard.399  We have also set out above the legal considerations governing an 
investigating authority's analysis of injury under Article 3 to the domestic industry (as defined by 
Article 4.1) producing the "like prod uct" (as defined in Article 2.6).400   
7.342  The immediate issue before us he re is whether Guatemala is co rrect in alleging that Economía 
failed progressively to reconcile the information it co llected and analysed for the purposes of its injury 
and causation analysis with the two ch anges in the product definition.   
                                                      
395 We refer to Guatemala's arguments in, for example, Guatemala's first written submission, 
paras. 161-163; Guatemala's response to question 172 from the Panel; Guatemala's rebuttal submission, 
paras. 59-73, especially paras. 60, 65. 
 
396 Guatemala's response to question 173 from the Panel. 
 
397 See supra , para. 7.105. 
 
398 See supra ,paras. 7.62-7.102. 
 
399See supra , paras. 7.103-7.106. 
 
400See supra , paras. 7.206-7.216. 
 WT/DS331/R 
Page 114  
 
 7.343  It is clear that there must be identity between the product subject to the anti-dumping duty and 
the product in respect of which a determination of dumping is made.
401  Similarly, injury and 
causation must be assessed in respect of domestic produ cers of the "like product".  In this respect, we 
see nothing in Article 3, or elsewhere in the Agreemen t, that would prevent an  investigating authority 
from adjusting the definition of the product under i nvestigation or the "like product".  Indeed, in 
certain circumstances, it might be necessary or hi ghly appropriate for an in vestigating authority to 
adjust or refine its product definition in light of information collected and analysed in the course of 
the investigation that was not available to the IA at  the time of initiation.  We do not mean to suggest 
that such adjustment or refinement could fundame ntally change the nature of the product under 
investigation; rather it would clearly have to respect  appropriate parameters.  Such adjustments to the 
definition of the product under investigation and/or  like product might very well call for modifications 
in the scope of data collected and analysed in or der to ensure a sufficient data set to fulfil the 
Article 3.1 requirement to make an objective examination of positive evidence in reaching a 
determination of injury.  The requirement for investigating authorities to conduct an "objective 
examination" of "positive evidence" under Article 3. 1 means that investigating authorities must gather 
and analyse evidence pertaining to the "dumped imports" as well as to the affected "domestic 
industry" producing the "like product".   
7.344  In respect of the extent to which Economía's co llection and analysis of injury data reflected 
the first and second changes in product definition – i.e. the inclusion of 4"-6" tubing and certain 
structural tubing – the record evidence we have described above indicates that, by the time of the 
Final Determination, Economía ha d sought, from certain domestic producers, and the record included, 
at least some economic and financial injury info rmation on the state of the domestic industry and 
information on the volume and price effects of  the dumped imports on the domestic industry402 
pertaining to a product definition that clearly included 4"-6" tubing and did not exclude certain structural tubing.
403  Furthermore, as we have already noted , the record is clear (and Guatemala does 
not contest) that by the end of the investigation, in addition to official SICMEX import statistics, 
Economía had obtained import "pedimentos" coveri ng essentially 100 per cent of the subject imports 
from Guatemala404, and certain import "pedimentos" reflecting imports from sources other than 
Guatemala, and thus had virtually comprehensiv e information concerning the product then being 
imported from Guatemala and (less comprehensiv e) information on imports from other sources405 that 
                                                      
401 E.g. Panel Report, US – Softwood Lumber V (Article 21.5 –  Canada) , para. 5.26. 
 
402 The post-hearing Exhibit GTM-31 indicates that while Economía requested from Hylsa updated 
injury data in respect of certain other potential adjustments to the product definition, it did not do so specifically 
in respect of the inclusion of structural tubing at that juncture.  Exhibit GTM-20, dated 6 September 2002, 
indicates that Hylsa perceived the product as standard black and galvanized tubing with diameters of ½-6" "with longitudinal weld and recognizable for conduction".  However, the verification report (Exhibit GTM-24) 
indicates that the verified injury information pertained to a product that included certain structural tubing. 
 
403 We address the comprehensiveness of the overall da ta set gathered and analysed for the purposes of 
Economía's analysis of injury to the "domestic industry" as defined by Economía elsewhere, see supra , paras. 
7.313 ff..  We refer to and incorporate here our citations of passages from the Preliminary and Final 
Determinations relating to the data acquired by Economía from the firms constituting the domestic industry, 
supra , paras.7.301-7.312.  We also recall our factual summary  above relating to the changes in the product 
scope and the information gathered from the domestic industry in that context;  see, in particular, paras. 7.72, 7.77, 7.82, 7.92, 7.93 and 7.102. 
 
404 Exhibit GTM-23, para. 164. 
 
405 We do not address here Guatemala's allegations pertaining to the methodology applied by Economía 
in respect of the  volume of imports of the product under investigation from sources other than Guatemala.  We address those allegations elsewhere in this report.  See paras. 7.264 ff. 
 WT/DS331/R 
Page 115 
 
 
  it could use for the purposes of its injury and causat ion determinations.  For the purpose of the Final 
Determination, this "pedimento" data was reviewed in line with the product definition in the Final 
Determination406 (i.e. including 4"-6" product and not excluding certain structural tubing).   
7.345  Given this record evidence, we find that the fa ctual premise for Guatemala's allegations about 
the collection and analysis of data on injury and causation in relation to the final product scope under 
investigation and the domestic i ndustry producing the like product is not accurate.  Given that this 
factual premise underpins Guatemala's Article 3 alle gations, we are thus unable to conclude that 
Guatemala has established that Economía violated Artic le 3.1, or, consequently, Articles 3.1, 3.2, 3.4 
and 3.5 by failing to conduct an objective examina tion of positive evidence in respect of the data 
collected and analysed in its determination of inju ry caused to the domestic industry (as defined in 
Article 4.1) in light of the changes of the produc t definition to include 4"-6" tubing and certain 
structural tubing.   
7.346  We recall that Guatemala also asserted a violation of Article 5.4 in the context of its claims 
and arguments relating to the change of product sc ope over the course of the investigation.  That 
Article provides:   
"An investigation shall not be initiated pursu ant to paragraph 1 unless the authorities have 
determined, on the basis of an examination of the degree of support for, or opposition to, the 
application expressed by domestic producers of th e like product, that the application has been 
made by or on behalf of the dom estic industry.  The application shall be considered to have 
been made "by or on behalf of the domestic industry" if it is supported by those domestic 
producers whose collective output constitutes more  than 50 per cent of the total production of 
the like product produced by that portion of the domestic industry expressing either support 
for or opposition to the application.  However,  no investigation shall be initiated when 
domestic producers expressly supporting the application account for less than 25 per cent of total production of the like product produced by  the domestic industry. "(footnotes omitted) 
 
7.347  Guatemala clarified407 that its Article 5.4 allegation was that "... changes to the definition of 
the investigated product have repercussions on the de finition of the domestic industry and hence also 
on the grounds for requesting initiation of an investigation.  By not taking account of possible repercussions of this kind when it broadened its definition of the investigated product, Economía 
acted in a manner inconsistent not only with Article 4.1 but also with Article 5.4 of the Anti-Dumping 
Agreement."  It is thus clear that Guatemala's Ar ticle 5.4 allegation relates to changes in the product 
definition after the initiation of the investigation.  In our view, Article 5.4 pertains exclusively to 
initiation, and there is no on-going obligation to monitor domestic industry support once an 
investigation has been initiated under the Anti-Dumping Agreement .  We thus disagree with the legal 
premise underlying Guatemala's allegation (that post-initiation changes in product scope may be 
challenged under Article 5.4).  That being said, however, we can envisage situations in which a 
radical change in the product definition may resu lt in involving entities additional to, or different 
from, those that had supported the initiation of  the investigation.  A WTO Panel called upon to 
scrutinize such a situation would have to do so very  closely.  However, in the case at hand, Guatemala 
has not brought to our attention any shift in the co mposition of the domestic industry in terms of the 
production of the like product occasioned by the expans ion of the scope of the investigation over its 
                                                     
 
406 See Exhibit GTM-23, para 165, in respect of imports from Guatemala: "On the basis of the 
characteristics of the investigated product set forth in the product likeness section of this Resolution, an analysis 
of the documentation gave the following results...".  In respect of imports from other sources, para. 167 states:  
"… the maximum and minimum prices of the imports id entified as investigated products were identified". 
 
407 Guatemala's response to question 172 from the Panel. WT/DS331/R 
Page 116  
 
 course.  Therefore, even assuming arguendo  that Guatemala's legal premise was sustainable, the 
record facts do not sustain Guatemala's claim.    
7. Causation/non-attribution 
(a) Arguments of the parties 
(i) Guatemala 
7.348  Guatemala  argues that Mexico's analysis of the causal link between dumping and injury was 
inconsistent with Articles 3.1, 3.2, 3.4 and 3.5 as it failed to analyse properly other known factors that 
were causing injury to the domestic industry at the same time as the dumped imports, and failed to 
ensure that injury caused by other known factors was not attributed to the imports under investigation.  
In particular, Mexico did not properly take into acc ount and/or explain that a decrease in exports was 
a factor causing injury and that that the reduction in operating profits resulted primarily from a cost 
increase. 
(ii) Mexico 
7.349  Mexico  asserts that Economía acted consistently with  Mexico's obligations under Articles 3.1, 
3.2, 3.4 and 3.5.  According to Mexico, Gu atemala's vague arguments fail to establish a prima facie  
case that the reduction in operating profits resulted pr imarily from a cost increase; that the Final 
Determination makes no mention of a cost increase a nd, in any event, any such increase could not be 
attributed to injury caused by dumped imports and was taken into account in the injury analysis of 
profits.  In respect of the decrease in exports, Mexi co asserts that Guatemala also fails to establish a 
prima facie  case.  Mexico affirms that the Determination indicates that, due to the small relative 
proportion of exports to total production, such decre ase could not have been a determining factor in 
causing injury to the domestic industry.  
(b) Arguments of the third parties 
7.350  Japan and the  United States assert that the failure to make  an objective examination of 
positive evidence within the meaning of Article 3.1 al so leads to a violation of Article 3.5 of the Anti-
Dumping Agreement . 
(c) Evaluation by the Panel 
7.351  In considering Guatemala's alle gations relating to causality and non-attribution, the question 
to be addressed by this Panel under Articles 3.1, 3.2, 3.4 and 3.5 is whether an unbiased and objective 
investigating authority could have treated two specifi c factors – cost trends and a decrease in exports 
– in the manner that Economía did when  analyzing injury and causality.   
7.352  We have already cited the relevant  obligations in Article 3 above.  Briefly, in concert with the 
Article 3.1 requirement of an "objective examinati on" of "positive evidence", Article 3.5 requires that 
an investigating authority establish a "causal relati onship" between dumped imports and the injury to 
the domestic industry.  In the course of identifying this causal relationship, investigating authorities 
are not permitted to attribute to dumped imports injuries caused by other factors which are injuring 
the domestic industry at the same time.  Critical to the effective operation of the non-attribution 
obligation, and indeed, the entire causation analysis, is  the requirement of Article 3.5 to "examine any 
known factors other than the dumped imports which at the same time are injuring the domestic 
industry", for it is the "injuries" caused by those "other" "known factors" that must "not be attributed" to dumped imports. WT/DS331/R 
Page 117 
 
 
  7.353  We note that Guatemala has raised two allegedly "other known" causal factors in this context 
– cost developments and a decrease in exports.  We  consider the consistenc y of Economía's treatment 
of each of these factors in turn, below, in light of  the requirements of causality and non-attribution set 
out in the relevant provisions of Article 3.   
(i) Costs  
 
7.354  Guatemala argues that according to the Final Dete rmination, Economía attributed the decline 
in Hylsa-DAT's operating profit during the period of investigation to a dec line in sales revenues and 
an increase in "costos de operación" ("operating costs").  According to Guatemala, the Final 
Determination indicates that those co sts continued to increase during 2000.408  Guatemala states that 
in the Final Determination, Economía  considered the decline in sales re venue to be the principal cause 
of the loss of profits, in spite of the fact that cost increases are a determinative factor in reduced 
profits, given that profits are calculated as reve nues minus costs.  Guatemala argues that Economía 
failed to provide a reasoned and adequate explan ation as to how it ensured that injury from the 
increase in costs was not attributed to the subject  imports.  Guatemala's argument thus is that 
Economía acted inconsistently with Articles 3.1, 3.2, 3.4 and 3.5 of the Agreement by failing to 
distinguish appropriately between the injury cau sed by the increase in operating costs (which, 
according to Guatemala was an "other known fact or" causing injury) versus that caused by the 
dumped imports; and by failing to perform any anal ysis to ensure that th e injury caused by the 
increased costs was not attributed to the dumped imports.409   
7.355  Mexico argues that contrary to Guatemala's assertion, the Final Determination makes no 
reference to an increase in "costos", and Mexico denies that there was any such increase.  Mexico 
argues that in fact "costos operativos" dec lined during the period of investigation.410  According to 
Mexico, therefore, Guatemala failed to establish a prima facie  case in respect of this claim. 
7.356  We note that central to this claim is a factua l disagreement between the parties as to whether 
the Final Determination indicates that Hylsa-DAT's operating costs increased during the period of 
investigation.  We thus start our analysis by considering the portion of the Final Determination - 
paragraphs 221 and 224 - to which Guatemala refers in its First Written Submission in respect of this 
claim:   
 
"221. In addition, on the basis of Hylsa-DAT's six-monthly statements of results, those for the years 1998 to 2000 were obtained.  They showed that in 1999 the 
applicant  recorded a 14 per cent drop in operatin g profits owing largely to a decline 
of just over 5 per cent in sales revenue and a 10 per cent increase in operating 
expenses ;  for the year 2000, the company's operating profits dropped 51 per cent as a 
                                                      
408 First written submission of Guatemala at paragraph 309, citing paragraphs 221 and 224 of the Final 
Determination (Exhibit GTM-23). 
 
409 Guatemala's response to question 170 from the Panel. 
 
410 Mexico also argues that, by definition, an in crease in costs can not be  attributed in any way to the 
injury caused by dumped imports.  First written submission of Mexico, at paragraph 261(b).  We understand this 
to be a response to Guatemala's argument that Economía did not explain "how it ensured that this increase in costs was not attributed to the injury caused by the du mped imports" (First written submission of Guatemala at 
paragraph 310).  On the basis of Guatemala's further development of the arguments regarding this claim, we 
understand Guatemala to be claiming that injury caused by increased costs was improperly attributed to the 
subject imports. 
 WT/DS331/R 
Page 118  
 
 result of the 7 per cent decline in the co mpany's total revenue, while there were 
practically no variations in the cost of goods sold." (emphasis added) 
[…] 224. Moreover, in the comparable period prior to the period of investigation, July-
December 1999, Hylsa-DAT
's operating profits posted a decline over the previous 
comparable period owing to the fact that th e cost of goods sold increased 15 per cent, 
while the Division's total revenue grew 8 per cent; this adversely affected the 
operating margin, which dropped 4-1/2 percen tage points, to 9 per cent.  For the 
period of investigation, July-December 2000, the operating profit fell 79 per cent 
because the Division's sales revenue dropped 19 per cent and operating expenses  rose 
6 per cent, which was reflected in a 7 per centage point drop in Hylsa-DAT's operating 
margin, to 2 per cent." (emphasis added) 
7.357  Guatemala's argument –  as presented in its First Written Submission – appears to be based on 
the references in the above p assages to increases in "operating expenses" ("gastos de operación") 
during the POI.  Given Mexico's denial that any in crease in "operating costs" ("costos operativos") 
took place, we asked Mexico to clarify why an in crease in "gastos operativos" did not result in an 
increase in "costos operativos".  Mexico responded by providing a schematic financial statement, 
reproduced below, which defines the terms us ed in the Final Determination as well as the 
relationships among those terms.411   
Operation Heading Explanation 
A Net sales Net sales revenue 
B Cost of goods sold The cost of goods sold includes the cost 
of manufacture, raw material, labour, indirect manufacturing expenses, initial 
and final inventories of: raw material, 
production in process and finished product. 
C = A-B Gross profit The result of subtracting the cost of goods 
sold from sales income. 
D Selling expenses The expenses a company incurs in putting 
the product on sale. 
E Administrative expenses Usually consists, inter alia , of salaries of 
administrator, manager, payment of office services. 
F = D+E Operating expenses The result of adding sales expenses and 
administrative expenses. 
G = B+F Operating cost The result of adding cost of goods sold 
and operating expenses. 
H = A-G Operating profit The result of subtracting operating cost 
from sales revenue. 
 
7.358  The above table makes clear that in Mexico's  terminology "operating expenses" ("gastos 
operativos") are not the same thing as "operating costs" ("costos operativos"), and indeed are a 
component of operating costs, the other component being "cost of goods sold" ("costo de ventas").  
We note that, as Mexico argues, cost of goods sold would typically be the major component of 
                                                      
411 Mexico's response to question 85 from the Panel. WT/DS331/R 
Page 119 
 
 
  operating cost, given that it comprises all direct and some indirect costs (materials, labour, and 
manufacturing costs), while operating expenses comp rise selling and administrative expenses.  We 
thus agree with Mexico that the influence on profit s of one or another component of total operating 
cost will depend upon the relative magnit udes and movements of these components.412  In this regard 
we take note of Mexico's arguments that what paragraph 224 of the Fina l Determination refers to is an 
increase in "operating expenses", not "operating cost s" during the POI (i.e., July-December 2000), and 
that an increase in the former do es not necessarily mean that there will be an increase in the latter 
because of their different relative magnitudes, and because cost of goods sold could move in the 
opposite direction.  We also note Mexico's argument  before us that as a factual matter Hylsa-DAT's 
cost of goods sold declined by 13.2 per cent dur ing the period of investigation.  The Final 
Determination does not refer to this fact.413   
7.359  Guatemala responds to this argument by sta ting that because the Final Determination 
indicates that, in percentage terms, the 19 per cent decline in sales revenue was smaller than the 
79 per cent decline in operating profits, there must have been other factors which were the main causes of the decline in profits (which we understand to mean causes more important than the decline 
in revenues).
414  Guatemala also presents a lengthy argum ent as to what it considers to be the 
necessary consequences of Hylsa's and Hylsa-DAT's financial indicators as presented in paragraphs 
221-224 of the Final Determination.  According to Guatemala, these conseque nces include an increase 
in operating costs (i.e., cost of go ods sold plus operating expenses).415   
7.360  We consider that this claim raises two interrela ted issues.  The first is the factual question of 
whether Guatemala has made a prima facie  case that there was an "oth er known factor", namely an 
increase in operating costs, that should have b een but was not taken into account in Economía's 
causation analysis in the Final Determination.   The second is whether an unbiased and objective 
investigating authority could have reached the conclusion, as Economía did, that the decline in profitability was due principally to  a decline in revenues and an in crease in operating expenses, and 
that of the two, the former was predominant.   
7.361  Concerning the first issue, we note that Guatemal a's arguments in respect of this claim, as 
well as the portions of the Final Determination wh ich it cites in support, changed considerably over 
the course of this dispute.  For example, as indi cated in paragraph 7.356 above, Guatemala's claim as 
set forth in its first submission was limited to Hylsa-DAT, and was based on paragraphs 221 and 224 of the Final Determination exclusively.  As noted  above, the only references in those paragraphs to 
increased cost elements during the POI (July-D ecember 2000) are the references to increases in 
"gastos operativos" which are neither the same as, nor do they ineluctably cause, increases in "costos 
operativos".  Furthermore, while in its First Writte n Submission Guatemala refers to paragraph 221 as 
pertaining to Hylsa-DAT, in a subsequent answer to one of our questions it indicates that this 
                                                     
 
412 Ibid. 
 
413 Ibid. 
 
414 Guatemala's response to questions 170 of the Panel, at para 52. 
 
415 Guatemala argues, in its response  to question 170 of the Panel, that "Economía drew no distinction 
between, on the one hand, the injury caused to its profits  by the drop in sales (assuming for the time being that 
the sales were affected solely by dumped imports) and, on the other hand, the injury caused by other factors that had a decisive influence on the dec line in profits (which include increases in operating costs in both its 
components, in operating expenses and in cost of goods sold, for which Economía provides partial and 
incomplete information)."  We note that, to the extent that this argument refers to the issue of the six-month periods used for the analysis, or to the fact that Economía based the analysis only on information for 
Hylsa/Hylsa-DAT, we have addressed these issues in other sections of this report.  WT/DS331/R 
Page 120  
 
 paragraph refers to "la solicitante" (i.e., Hylsa).
416  Guatemala then raises a number of new arguments, 
based on other paragraphs of the Final Determina tion, pertaining to both Hylsa and Hylsa-DAT.  
Among these arguments is a lengthy speculation as to what would have happened to various 
components of Hylsa's and Hylsa-DAT's financial stat ements if certain events had occurred or certain 
trends had continued.  We consider that Guatem ala's initial presentation of its claim was based on a 
misreading of paragraph 221 and a misunderstanding of the term "gastos operativos" in paragraphs 
221 and 224, and we do not find its subsequent very different and e ssentially speculative arguments to 
be convincing.  As complainant, Guatemala bore th e initial burden of proof to assert the affirmative of 
its claim.  For the reasons discussed, we consider that Guatemala did not provide evidence sufficient 
to raise a presumption that what it asserted was correct , i.e., that the Final Determination indicates that 
Hylsa-DAT's "operating costs" must have increased during the period of investigation.  
7.362  Concerning the second issue, it is evident to us  from the Final Determination that Economía 
evaluated the details of Hylsa-DAT's financial perfo rmance, and that on the basis of this analysis, 
Economía concluded that the decline in operating pr ofits was caused by the reduction in sales revenue 
and the increase in operating expenses, and that of these, the decline in sales revenue was 
predominant.417  In our view, an unbiased and objective i nvestigating authority could properly have 
reached this conclusion on the basi s of the facts as presented in the relevant portions of the Final 
Determination.  While we find the explanation in the Final Determination to be somewhat hard to 
follow, we disagree with Guatemala that the Fi nal Determination indicat es that Economía had no 
factual basis for the conclusion that it reached.  Furthe rmore, given our standard of review, the issue is 
not whether we would have evaluated the facts di fferently from Economía and come to a different 
conclusion, but rather whether Economía failed to  take into account an "other factor" which was 
"known" to it.  In our view, therefore, Guatemala has failed to establish a prima facie  case of 
inconsistency with the obligations  under Articles 3.1, 3.2, 3.4 and 3.5, and even if it had met its prima 
facie  burden, we still would not find an inconsistency with Articles 3.1, 3.2, 3.4 and 3.5 for the 
reasons set forth.   
(ii) Exports 
7.363  In respect of Economía's alleged breach of Ar ticles 3.1, 3.2, 3.4 and 3.5 relating to non-
attribution of injury from a decrease in exports, ther e is no disagreement between the parties that this 
"decrease" occurred and was a "known factor".  Rather, Guatemala's claim is that Economía's 
appraisal of the decrease in exports was inadequate .  In particular, according to Guatemala, on the 
basis of the facts as set forth in the Final Determin ation, the absolute decrea se in exports (described in 
the Final Determination as a decline in the share of exports in relation to national production from 
7 per cent to 5 per cent, or two percentage points,  between the six-month periods of 1998 and 2000) 
must have been equal to or greater than the 2 pe r cent drop in the volume of domestic sales during the 
POI.  In particular, Guatemala argues, a reduction of 2 per cent of total production would if anything 
be larger in absolute terms than a reduction of 2 per cent of domestic sales, as total production could 
be expected to be greater than domestic sales.  As  such, Guatemala argues, the impact on the state of 
the domestic industry of the reduction in exports must have been at least commensurate with the 
impact of the reduction in domestic sales.  Guatemal a further asserts that even if the impact of the 
                                                      
416 Guatemala's response to question 170 of the Panel, at para. 42. 
 
417 "…[I]n the period of investigation as compared to  the previous comparable  periods, the operating 
profits of the Division of Steel Tubing recorded a declin e which can be attributed essentially to the drop in its  
sales revenue, which was reflected in declines in th e Division's operating margin ...".  Exhibit GTM-23, 
para 238;  Mexico's second written submission, para 193. WT/DS331/R 
Page 121 
 
 
  decrease in exports was not determinative, the re sulting injury should still have been properly 
attributed.418 
7.364  Mexico did not respond directly to Guatemala' s statistical argument outlined above until the 
very end of this dispute, in its comments responding to Guatemala's comments on statistical 
information requested by the Panel at that stage419, but instead initially argued that Guatemala had not 
made out a prima facie  case as in Mexico's view, Guatemala had claimed that the Final Determination 
did not even address the decline in exports.  In this  regard, Mexico referred to the statement in the 
Final Determination that Economía did not consider the decline in exports to be "determinative" 
because of the small share of domestic production accounted for by exports.  According to Mexico, 
this assessment was reasonable and sufficient, and Ec onomía thus acted in full conformity with the 
cited provisions of the Agreement  in its treatment of exports.  Mexico's direct responses to 
Guatemala's statistical argument, submitted in its response to Guatemala's comments on the newly-
submitted statistical information are set forth below, at paragraph 7.371.   
7.365  Before considering the detailed arguments of the parties, we set forth the relevant portion of 
the Final Determination  ("Effects on economic indicators"): 
 "201. At this stage of the investigation, th e Ministry had direct information on the economic 
indicators of the investigated pipe of the applicant, of Tubería Nacional and of Compañía Mexicana de Tubos, which together accounted for 88 per cent of the domestic industry, so the 
Ministry determined that the behaviour of th ese indicators was representative of the industry. 
 
                                                     
 
418 Guatemala's response to question 80 from the Panel:   
 
"... Economía did not properly quantify the e ffects on domestic production of the drop in 
exports as compared to the dr op in domestic sales.  Economía indicated that domestic 
industry’s sales to the domestic market grew by 3 per cent from 1998 to 1999 and then fell 
by 5 per cent in 2000.  There was thus an ov erall decline of 2 per cent in the period 1998-
2000.  Economía also explained that domestic industry exports fell from 7 per cent "of market-oriented domestic production" to 5 per cent in the course of the 1998-2000 period.  
It would therefore appear that the decline in exports was largely the same as the decline in 
domestic sales.  In fact, the drop in exports may even have been greater than the drop in 
domestic sales insofar as Economía apparently used different denominators in reckoning 
these percentages.  The drop in sales to the ma rket is shown as a percentage of domestic 
sales, while the drop in exports is expressed as a percentage of "market-oriented domestic 
production", which apparently refers to production for all markets.  It can be assumed that 
2 per cent of total domestic production for the market as a whole (" mercado de 
comercialización ") is broader in absolute terms than 2 per cent of sales to the domestic 
market.  Therefore, contrary to Economía's c onclusion, Economía's figures suggest that the 
decline in exports had a greater effect on the pe rformance of the domestic industry than the 
decline in domestic sales.  In these circ umstances, Economía should have conducted a 
proper non-attribution analysis to ensure that the injury caused by this factor was not 
attributed to the subject imports."  
 Mexico argues in its 23 January 2007 response to Guatemala's comments on information submitted by 
Mexico in response to a question from the Panel (see paragraph 7.368, infra .) that, in arguing that the volume of 
the decline in exports was triple the volume of the decl ine sales to the domestic market, Guatemala raised a new 
argument in its comments.  We disa gree.  We consider that Guatemala' s argument on this point has been 
consistent throughout this dispute, although obviously Guatemala lacked the precise data underlying the statements in the Final Determination until Mexico's response to our request. 
 
419 The Panel's request for information was dated 17 January 2007, Mexico's response submitting the 
requested information was dated 19 January 2007, Guat emala's comments on the submitted information were 
dated 23 January 2007, and Mexico's response to Guatemala's comments was dated 25 January 2007.   WT/DS331/R 
Page 122  
 
  202. On the basis of the information referred to in the previous point and that obtained 
from the SICMEX list of 'pedimentos', the Mini stry noted that the Mexican market for the 
investigated pipe, measured in terms of appare nt domestic consumption, calculated as set out 
in points 173 and 174 of this Resolution, rema ined practically constant in the periods July-
December of 1998 and 1999, and increased 5 per cent in the period July-December 2000. 
 
 203. The increase noted in apparent domestic  consumption between July-December 1998 
and the period of investigation was filled in part  by imports of Guatemalan investigated pipe 
which attained a 5 per cent share in the period of investigation, having been insignificant in 
the period July-December 1998;  imports from s ources other than Guatemala increased their 
share by 6 percentage points in the period of investigation, following a virtually constant 
share in the period July-December 1998 and 1999. 
  204. The performance of imports was reflecte d in the behaviour of the total domestic-
market-oriented production of the applicant,  Tubería Nacional and Compañía Mexicana de 
Tubos.  In absolute terms, this indicator dropped 2 per cent from the period July-December 
1998 to the same period in 2000, notwithsta nding a 1 per cent increase in the period of 
investigation in relation to the previous comparable period. 
  205. Sales to the domestic market by these companies grew 3 per cent in July- 
December 1999 in relation to the level reached in July-December 1998, then fell 5 per cent in 
the period of investigation. 
  206. The drop in the sales of these compan ies to the domestic market was largely 
accounted for by the investigated  imports entering in conditions of price discrimination, for 
the following reasons:  prices of imports from other sources were higher than the price of 
Guatemalan imports and, as stated in points 178 and 179 of this Resolution, there is no 
evidence in the administrative f ile that the main companies that imported pipe identified as 
investigated products from other sources accounted  for loss by the domestic industry of sales 
or customers, since in the periods July-December 1998 and 1999 and in the period of investigation, they were not identified as cu stomers of the applicant, the main domestic 
producer of the investigated pipe. 
 
 207. Total exports of the investigated pipe by the domestic industry showed a downward 
trend:  in July-December they dropped 51 per cent and in the period of investigation posted a 
drop of 25 per cent.  It should be pointed out that while in the period July-December 1998 they represented 7 per cent of market-orien ted domestic production, in the period July-
December 1999 and the period of investig ation they accounted for 3 and 5 per cent 
respectively, so their behaviour could not be a d ecisive factor in explaining the injury to the 
domestic industry. 
  208. The trend in sales was reflected in a decline in production and, hence, in the 
utilization of the installed capacity for productio n of the investigated pipe corresponding to 
the domestic manufacturers. 
  209. As to production in absolute terms, this  indicator recorded a drop of 6 per cent from 
July-December 1998 to the same period in 1999 and showed practically the same level in the period of investigation in relation to the compar able previous period;  utilization of installed 
production capacity dropped 4 percentage points from the period July-December 1999 to the 
period of investigation. 
  210. With regard to the average inventories of  these companies, the Ministry noted that in 
the period of investigation they increased 3 per cent over the level recorded in July-December WT/DS331/R 
Page 123 
 
 
  1999;  it is important to highlight that these accounted for 16 and 17 per cent of domestic-
market-oriented domestic production in the periods  indicated.  Furthermore, in the period of 
investigation, the average employment level dropped 5 per cent as compared to the level 
recorded in the comparable previous period. 
 
 211. On the basis of the indications in points 195 to 210 of this Resolution, and taking 
account of the arguments of the exporter and the applicant, the Ministry determined that the economic indicators corresponding to the domestic producers Hylsa, Tubería Nacional and Compañía Mexicana de Tubos, recorded negativ e behaviour in the period of investigation 
owing largely to the increase in imports  from Guatemala in conditions of price 
discrimination.
420 
7.366  We read the above portion of the Final Determina tion as a description of injury in the form of 
and attributable to volume  declines in domestic industry sales and production, which in turn, 
according to Economía, were "principally due to" the increase in the volume of dumped imports from 
Guatemala.  In particular, the argument in the Fi nal Determination is that although apparent domestic 
consumption increased during the period of investig ation, this growth was more than captured by 
imports – among them the investigated imports from Guatemala – and that as a result the volume of 
domestic producers' sales into the Mexican market dec lined.  Economía attributed the decline in these 
domestic sales largely to the imports from Guatem ala on the basis that the Guatemalan products' 
prices were lower than those of the other imports, an d that the importers of the other imports were not 
customers of Hylsa.  The argument continues th at the reduction in the volume of the Mexican 
producers' domestic sales brought about a decline in production and an increase in inventories.  In 
more precise terms, we thus view this part of the Final Determination as identifying the decline in the 
volume of the domestic producers' sales into the Mexi can market as the nexus of the injury described 
in this section of the Final Determination421, as the Determination identifi es this decline as the cause 
of the concurrent decline in producti on, capacity utilization and employment.422 
7.367  We recall that Guatemala's factual argument in s upport of its claim is that the cited portion of 
the Final Determination indicates that the reported ne t decline of two percentage points in the volume 
of exports in relation to production between the 199 8 and 2000 half-year periods must, as a matter of 
logic, have been at least as large as the net dec line in the volume of sales to the domestic market 
between the same periods, given that the industry's total production volume could be expected to be at 
least as large as the volume of domestic sales.  We first considered this argument on the basis of the 
text of the Final Determination cite d above, and found its l ogic to be compelling.  That is, on the basis 
of this text, we did not see how the amount of th e decline in export volume could be less than the 
amount of the decline in the volume of domestic sales.   
7.368  We noted, however, that because of the absence in the cited text of either any absolute figures 
or of any definitions of the terms used and thei r interrelationships, we could not reach a definite 
conclusion as to this factual question.  In particul ar, we needed to understand the meanings of the 
different terms used in the text (e.g., "produ cción" (production), "producción nacional" (domestic 
production), "producción orientada al mercado in terno" (domestic market-oriented production), 
                                                      
420 Guatemala - Exhibit GTM-23. 
 
421 We recognize, as argued by Me xico, that Economía's causation analysis was not limited to volume 
effects but also took into account financial and price e ffects (i.e., decreased profits).  The section of the Final 
Determination at issue in this claim is, however, concer ned only with volume eff ects, as the other effects 
referred to by Mexico are addressed elsewhere in the Final Determination (and the claim relating thereto is 
analyzed in the preceding s ection of this report). 
 
422 Exhibit GTM-23, para. 207; Mexico first written submission, paras. 278 - 280. WT/DS331/R 
Page 124  
 
 "producción nacional orientada al mercado" (mar ket-oriented domestic production), "producción 
nacional orientada al mercado interno" (domestic  market-oriented domestic consumption), "consumo 
nacional aparente" (apparent dom estic consumption), "importaciones de Guatemala y de otros 
orígenes" (imports from Guatemala and other sources), "ventas al mercado interno" (sales to the domestic market), "exportaciones" (exports), and "inv entarios" (inventories)) and how they related to 
one another.  That is, because of the different term s used, we could not be sure as to the degree of 
similarity or difference between the bases on which the declines in domestic sales and exports, as  reported in the Final Determination,  were calculated.  For this reas on, as indicated above we asked 
Mexico to provide us with the documents from the re cord of the investigation containing the figures 
that justified the analysis and percentages referred to in paragra phs 201-210 of the Final 
Determination.  Mexico submitted a number of exhibits in response.
423  Guatemala then had an 
opportunity to comment in writing on the new inform ation submitted by Mexico, and Mexico had an 
opportunity to respond to Guatemala's comments.424 
7.369  Of the information submitted, we find the fi rst page of Exhibit MEX-15 to be the most 
pertinent to the factual question before us.  This page, which consists of a table entitled "Indicadores 
de la Industria Nacional" (Domest ic Industry Indicators), contains all of the figures on which the 
narrative in the cited paragraphs of the Final Determ ination is based.  From this table, we understand 
that not all of the different production-related terms that appear in those paragraphs in fact have 
distinct meanings.  In particular, we note that "p roducción nacional" refers to total production of the 
industry, including Procarsa (which did not provide data to Economía), while "producción" refers to 
the production reported to Economía by Hylsa, Tuberí a Nacional, and Compañía Mexicana de Tubos.  
Furthermore, the only subcategory of "producción" th at appears in this table is "producción nacional 
orientada al mercado Mexicano" (Mexican market-o riented domestic production).  From this fact, and 
                                                      
423 Our precise question, which we posed on 17 January 2007, was:  "Paragraphs 201-210 of the Final 
Determination refer to certain indi cators relating to the Mexican market  and the performance of Mexico's 
domestic industry, in particular "apparent domestic consumption", "imports from Guatemala and other sources", 
"production for the domestic market", "sales to the domestic market" "exports", "domestic production for the 
market ", "production" and "inventories".  The Panel needs documents from the investigation file that contain all of the figures supporting the analysis and the percentages in these paragraphs, i.e. the documents Economía used 
in drafting the above-mentioned paragraphs."  In response to this question, on 19 January 2007 Mexico 
submitted Exhibits MEX-15 through MEX-25. 
 
424 Guatemala's comments were dated 23 January 2007 and Mexico's responses were dated 
25 January 2007.  In addition to commenting on the question of the decline in exports, Guatemala raised a 
number of points relating to its claims concerning Economía's use of six-month periods in its injury analysis, 
and concerning Economía's use of data for varying groups of domestic producers for different injury indicators.  Guatemala also questioned whether the Panel's request fo r data from the record of the investigation was in 
accordance with the Panel's standard of review.  Mexico submitted responses on all of these points.  We have 
not found it necessary to rely on the arguments of the parties from this late stage of the dispute in reaching our conclusions on Guatemala's claims relating to the six-month periods or the varying groups of domestic 
producers, as we already had sufficient elements before us to resolve those claims.  Concerning our standard of 
review, we consider that Mexico correctly interpreted, and fully complied with, our request for information, and 
we disagree with Guatemala's implication that a panel is prevented by the standard of review from seeking the 
compiled data from the record of an investigation on which statistical descriptions contained in the authority's 
determination are based.  In this connection, we reca ll that under our standard of review, as set forth in 
Article 17.6 of the Anti-Dumping Agreement , our task involves, inter alia , assessing the investigating authority's 
establishment and analysis of the facts  in the investigation.  It is indeed  well-established that Articles 17.5 and 
17.6(i) require a panel to examine the facts made availa ble to the investigating authority.  See, for example, 
Appellate Body Report, Thailand – H-Beams , para. 118. 
 WT/DS331/R 
Page 125 
 
 
  from a comparison of the data in the table with the percentages cited in the Final Determination, we 
conclude that the other similar terms in the Final Determination425 in fact refer to this same concept.   
7.370  This table provides confirmation of Guatemala's f actual allegation.  That is, the data in the 
table show that in absolute volume terms, the declin e in exports was in fact three times as large as the 
decline in the volume of sales to the domestic market over the period described in the Final 
Determination (i.e., July-December 1998 to July-D ecember 2000).  Mexico argues in its comments 
related to this information that Guatemala unjustif iably compares the data for the 1998 period to that 
for the 2000 period, without taking into account the developments in the 1999 period.  We note that the Final Determination compares at various places data  for the 1998 period to that for both 1999 and 
2000, and that we therefore do not find Guatemala' s argument to be invalid.  Guatemala's essential 
point is that over the period examined by Economía , the decline in export volume was at least as great 
as the decline in the volume of sales to the domes tic market, and that given the focus on volume in 
this section of the Final Determination, there wa s no basis for Economía to have considered the 
volume decline in exports as less important than the volume decline in domestic sales.  In other 
words, according to Guatemala, th e decline in exports was an "other known factor" causing injury, in 
respect of which Economía failed to conduct the necessar y non-attribution analysis to ensure that this 
injury was not attributed to the investigated imports.    
7.371  In its response to Guatemala's comments on the new information submitted by Mexico in 
Exhibits MEX-15 to MEX-25, Mexico provided a speci fic response to Guatemala's argument that the 
volume decline in exports was greater than that in do mestic sales, such that the statement in the Final 
Determination that the export decline was not dete rminative due to the small proportion of national 
production accounted for by exports was an insuffici ent non-attribution analysis.  Mexico does not 
contest the factual accuracy of this argument, but rath er contends that it is erroneous to consider that 
the importance to an industry of a decline in e xports is based on the numb er of tons involved, per se , 
and that the significance of the decline instead depe nds on the percentage that this represents of 
national production.  We thus see Mexico as arguing that because domestic sales account for a 
considerably higher proportion of  domestic production than did export sales, the absolute tonnage 
decline in domestic sales had a much greater (apparently "determinative") negative volume-based 
impact on the condition of the domestic industry th an did the three-times-larger absolute tonnage 
decline in export sales.  We find no development of  such concepts in the Final Determination, 
however, but instead see only a conclusory statement there.
426   
7.372  Under our standard of review, our task is to determine whether an unbiased and objective 
investigating authority, on the basis of the relevant  facts of record, could have reached the conclusion 
in the Final Determination.  Put in concrete terms, could an unbiased and objective investigating 
authority have found that a given decline in the volume of sales to the domestic market was a 
principal element of and factor in the injury experienced by the domestic industry (i.e., that this decline which was caused by displacement by th e subject imports led to a harmful decline in 
production, capacity utilization and employment), wh ile dismissing as not a "determinative factor" a 
decline in the volume of export sales of at least th e same magnitude (in this case three times larger 
over the full period considered).  To us, the answ er on the face of these facts can only be in the 
                                                     
 
425 I.e., "producción orientada al mercado interno" (domestic market-oriented production) and 
"producción nacional orientada al mercado" (market-oriented domestic production). 
 
426 Mexico also raises other counterarguments to Gu atemala's comments.  First, Mexico argues that 
Guatemala's argument as presented in its comments is new,  a contention with which we disagree, as we explain 
in footnote 418.  Mexico also asserts that Guatemala argued that Economía had not provided any reasons for 
considering the decline in export sales not to be determin ative, which Mexico denies by stating that in fact the 
Final Determination does refer to a reason.  We do not consider that this character ization reflects Guatemala's 
allegation, which in our view is that the reason provided is  not convincing in the light of the facts as they can be 
deduced from the relevant portion of the Determination. WT/DS331/R 
Page 126  
 
 negative.  Nor do we consider that Economía ma de any attempt in the Final Determination to 
distinguish the relative impacts on the industry of the respective declines in the volumes of domestic 
sales and exports.  To the contrary, the only expl anation given by Economía for dismissing the decline 
in exports as a determinative factor  was exports' small share of domestic  production.  This statistic is 
irrelevant, however, given that the "yardstick" used in Economía's entire analysis in this section of the 
Determination was the absolute
 decline in volume, by which yardstick the decline in exports over the 
period analysed by Economía was considerably larger than that in domestic sales.  In short, we do not 
consider that Economía's non-attribution analysis in respect of the impact of the decline in exports on 
the domestic industry was sufficient.  For these reas ons, we find that Economía acted inconsistently 
with Mexico's obligations under Articles 3.1, 3.2, 3.4 and 3.5 in its treatment of the decrease in 
exports in its causation analysis.  
F. PROCEDURAL CLAIMS  
1. Confidentiality and non-confidential summaries 
(a) Arguments of the parties 
(i) Guatemala 
7.373  Guatemala  asserts that Mexico violated Article 6.5 of the Anti-Dumping Agreement  as it 
failed to require the applicant to provide non-confid ential summaries, to evaluate the sufficiency of 
the summaries, and to disclose properly information that was not shown upon good cause to be confidential or, alternatively, to disclose non-confid ential summaries of confidential information.   
(ii) Mexico 
7.374  Mexico argues that it proceeded precisely as envisaged by Article 6.5 of the Anti-Dumping 
Agreement :  it permitted the information concerned to be treated as confidential upon a showing of 
sufficient good cause, while allowing qualified represen tatives of all interested parties (including 
Tubac) opportunities for full access to the confidentia l information.  Furthermore, Article 6.5.1 
envisages that in exceptional circumstances, parties ma y indicate that information is not susceptible of 
summary, if they provide a statement of the reasons  why summarization is not possible.  According to 
Mexico, that is precisely what happened in the instant investigation.  
(b) Arguments of the third parties 
7.375  The European Communities  declines to comment on certain aspects of Guatemala's claim, 
as it has no access to the confidential information concer ned (e.g. in respect of Mexico's assertion that 
numerical information is not susceptible of summary).  However, a justification to designate information as confidential cannot  be a tautology, and the ground s that permitted understanding and 
review of the reasons that led the IA to conclude that the information should be treated as confidential 
is not clear from the record.  In addition, Mexi co's domestic law and regulations on access to 
confidential information cannot trump its obligations under Article 6.5 of the Anti-Dumping 
Agreement . 
(c) Evaluation by the Panel 
7.376  We understand Guatemala to allege  violations of the chapeau and paragraph 1 of Article 6.5 
in respect of certain information in the course of the investigation.
427  The primary focus of 
                                                      
427 In response to question 114 from the Panel, Guatemala maintains that the legal basis for its claims 
regarding the treatment of confidential information is the chapeau and paragraphs 1 and 2 of Article 6.5.  The WT/DS331/R 
Page 127 
 
 
  Guatemala's claims is the initiation evidence relating to "normal value" (i.e. the invoice and the price 
quote, already discussed above in our examination of Guatemala's claims under Article 5.3), while Guatemala also refers to Hylsa's 17 Septem ber 2002 document containing information on the 
description of the product under investigation (in partic ular, the issue of inclusion of certain structural 
tubing within the scope of the produc t under investigation/like product).
428  We consider each of these 
allegations below, after setting out relevant legal considerations.  
7.377  Article 6.5 of the Anti-Dumping Agreement  reads: 
"6.5 Any information which is by nature  confidential (for example, because its 
disclosure would be of significant competitiv e advantage to a competitor or because 
its disclosure would have a significantly adverse effect upon a person supplying the 
information or upon a person from whom that  person acquired the information), or 
which is provided on a confidential basis by  parties to an investigation shall, upon 
good cause shown, be treated as such by the au thorities.  Such information shall not 
be disclosed without specific permission of the party submitting it.* 
6.5.1 The authorities shall require interested parties providing 
confidential information to furnish non-confidential summaries 
thereof.  These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence.  In excepti onal circumstances, such parties 
may indicate that such information is  not susceptible of summary.  In 
such exceptional circumstances, a statement of the reasons why 
summarization is not possible must be provided. 
6.5.2 If the authorities find that a request for confidentiality is not 
warranted and if the  supplier of th e information is either unwilling to 
make the information public or to authorize its disclosure in generalized or summary form, the authorities may disregard such 
information unless it can be demonstrated to their satisfaction from 
appropriate sources that the information is correct."** 
*Members are aware that in the terr itory of certain Members disclosure 
pursuant to a narrowly-drawn protective order may be required. 
**Members agree that requests for confidentiality should not be arbitrarily 
rejected.   
7.378  The text of Article 6.5 of the Anti-Dumping Agreement  states that confidential information 
shall, upon good cause shown, be treated as such by th e authorities.  Such information shall not be 
                                                                                                                                                                     
panel request refers to Article 6.5 only.  While the partie s have not raised any issue that the legal basis of the 
claim is not identified in sufficient detail for the claim to be within the Panel's terms of reference, we are aware 
that this is ultimately the Panel's responsibility.  We consider that, in light of the description of the claims in the 
Panel request, the reference to Article 6.5 is here sufficient to encompass claims under Articles 6.5 (chapeau) and paragraphs 6.5.1 and 6.5.2. 
 
428 In response to question 115 from the Panel, Gu atemala explains that Economía gave confidential 
treatment to certain information relating to the product under investigation.  This information was included in 
the 17 September 2002 response by Hylsa to certain questions by Economía (and is in the Panel record, Exhibit 
GTM-31).  Guatemala asserts that this information wa s submitted as confidential, with no justification and 
without a non-confidential summary. 
 WT/DS331/R 
Page 128  
 
 disclosed without specific permission of the party submitting it.
429  This provision distinguishes 
between two types of confidential information:  (1) "information which is by nature confidential", and 
(2) information "which is provided on a confidentia l basis".  The requirement to show "good cause" 
has been understood to apply to both these types of confidential information.430  However, in our 
view, the nature and degree of that requireme nt would depend on the type of information 
concerned.431  For example, a showing of "good cause" for in formation that is "by nature confidential" 
may consist of establishing that the information fits into the Article 6.5 (chapeau) description of such 
information:  "for example, because its disclosur e would be of significant competitive advantage to a 
competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from w hom that person acquired the information."   
7.379  Article 6.5.1 establishes that the investigating au thority must require that interested parties 
submitting confidential information also furnish a sufficiently detailed non-confidential summary.
432  
These summaries have to permit a reasonable under standing of the substance of the confidential 
information.  However, such non-confidential summa ries need not be furnished when, "in exceptional 
circumstances", the information "is not susceptible of  summary".  In such cases, "a statement of the 
reasons why summarization is not possible must be provided".   Although Article 6.5.1 does not 
explicitly provide that "the authorities shall require" interested parties to provide a statement of the 
reasons why summarization is not possible, we cons ider that Article 6.5.1 will be meaningfully 
construed if the interested part y on its own initiative gives the reasons why summarization is not 
possible, in which case it will be for the investig ating authority to ensure compliance with the 
mandate in Article 6.5.1.433  Accordingly, we consider that Article 6.5.1 imposes an obligation on 
investigating authorities to require parties that indi cate that information is not susceptible of summary 
to provide a statement of the reasons why summarization is not possible.   
7.380  We see that Article 6.5.1 strikes a balance be tween the interests of the interested parties 
submitting confidential information to have that c onfidentiality maintained during the investigation 
and the interests of the rest of th e interested parties to be reasonabl y informed about the substance of 
                                                      
429 There is recognition that disclosure may be required pursuant to narrowly-drawn protective orders. 
 
430 Panel Report, Guatemala - Cement II , para. 8.219;  Panel Report, Korea - Paper , para. 7.334. 
 
431 Panel Report, Korea – Certain Paper , para. 7.335. 
 
432 Like the panel in US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , 
para. 7.135, we find the following finding by the panel in Guatemala – Cement II  helpful: 
 
"Although Article 6.5.1 does not explicitly provide that "the authorities shall require" 
interested parties to provide a statement of th e reasons why summarizati on is not possible, any 
meaningful interpretation of Artic le 6.5.1 must impose such an obligation on the investigating 
authorities.  It is certainly not possible to conclude that the obligation concerning the need to 
provide a statement of reasons is an obligation imposed exclusively on the interested party 
submitting the information, and not the investigating authority, since the Anti-Dumping 
Agreement  is not addressed at interested parties.  The Anti-Dumping Agreement  imposes 
obligations on WTO Members and their investiga ting authorities.  Accordingly, in our view 
Article 6.5.1 imposes an obligation on investiga ting authorities to require parties that indicate 
that information is not susceptible of summary to provide a statement of the reasons why 
summarization is not possible."  
Panel Report, Guatemala – Cement II , para. 8.213. 
 
433 We believe that this would also find support in Panel Report, Guatemala – Cement II , para. 8.213. 
 WT/DS331/R 
Page 129 
 
 
  that information in order to be able to defend their interests.434  We are aware that the designation of 
information as "confidential" might affect the ability of interested parties to have full access to that 
information, and therefore might affect their ability to defend their interests in the course of an anti-
dumping investigation.  We are further aware of th e potential for abuse of the possibility to designate 
information as confidential so as to consciously pl ace other interested parties at a disadvantage in the 
investigation.  We consider that the conditions set out in Article 6.5, chapeau, and 6.5.1 are of critical 
importance in preserving the balance between the inte rests of confidentiality an d the ability of another 
interested party to defend its rights throughout an anti-dumping investigation.  For precisely this reason, we consider it paramount for an investigati ng authority to ensure that the conditions in these 
provisions are fulfilled.  We consider it equally im portant for a WTO Panel called upon to review an 
investigating authority's treatment of confidential information strictly to enforce these conditions, 
while remaining cognizant of the applicable standard of review.  
7.381  Article 6.5.2 does not require any justificati on to be provided by the interested party 
requesting confidential treatment.  Any such obliga tion derives from Article 6.5, and not 6.5.2.  
Article 6.5.2 speaks only to particular circumstan ces – if the authorities find that a request for 
confidentiality is not warranted and if the supplier of the information is either unwilling to make the 
information public or to authorize its disclosure in  generalized or summary form.  Since there is 
nothing to suggest that the Mexican investigatin g authority found that the applicant's request for 
confidentiality of the relevant information was not warranted, Article 6.5.2 would, in any event, not 
appear to be applicable in the factual circumstan ces of this case.  It may, nevertheless, provide 
contextual guidance in our resolution of Guatemala's claim.   
7.382  Article 6.5.2 addresses circumstances wher e the authorities find that a request for 
confidentiality is not warranted.  To us, this is a clear textual indication that the investigating authority 
has the responsibility – indeed, the obligation – to  review, and decide upon, whether a request for 
confidentiality in line with the chap eau of Article 6.5 is, or is not, warranted.  It is clear that 
Article 6.5 requires an investigating authority to ex amine the request for confidential treatment and to 
decide whether or not it is warranted.  However, Article 6.5 says nothing regarding the nature of the 
examination process to be carried out.  Nor does it say anything requiring an explanation of how that 
examination was carried out.
435  There is no express provision re gulating what should occur in the 
circumstance where an investigating authority considers that a request for confidentiality is warranted, 
beyond the obligation to treat such information as conf idential.  Nor does the text of Article 6.5 or 
6.5.1 contain any express obligation relating to how an investigating authority should decide in 
respect of a party's assertion that summarization of confidential information is not possible, nor how 
an investigating authority should or must communicate any  decision on this matter.  
7.383  With these considerations in mind, we turn to  the particular circumstances of this case.  
Turning to the initiation evidence on normal value, we see that the applican t requested confidential 
treatment for much of the evidence supporting its application – including information relating to 
normal value and the description of th e product under investigation.   
7.384  With respect to Guatemala's allegations about the treatment of confidential information in 
connection with the initiation evidence relating to "nor mal value", we recall that both of the relevant 
                                                      
434 See, for example, Panel Report, Argentina – Ceramic Tiles , paras. 6.38-6.39. 
 
435 We recall that the notice required by  the transparency provisions in Article 12.1 is not at issue here.  
In any event, the obligations in Article 12 include the statement that:  "Such a notice or report shall, due regard 
being paid to the requirement for the protection of confidential information , contain in particular: ..." 
 WT/DS331/R 
Page 130  
 
 pieces of evidence – the invoice and the price quote – were part of the Panel record.
436  The applicant 
provided a non-confidential version of the application, but as the invoice was "confidential", it was 
not included in this non-confidential version of th e application; similarly, as the price quote was 
"confidential" it was not included in Hylsa's response437 to the "prevención".438  I n  t h e  n o n -
confidential version of the application, certain part s of the application were deleted from the text and 
replaced by blank square brackets, or – in the case of the Annex concerned – simply by blank 
columns.  The substance was left out.  The applica tion contains a general statement indicating why the 
applicant considered the information should be treated as confidential.439  No non-confidential 
summary of the omitted confidential information was submitted to Economía, nor is there any 
indication that Economía requested such a non-confidential summary once it had seen how 
information therein had been treated.  The applica tion asserts that the non-confidential version of the 
application contained sufficient detail to permit a reasonable understanding of the substance of the 
information, while omitting certain elements and data that, due to their confidential nature and as they 
consisted of numerical data and identifica tion numbers, were not susceptible of summary.440   
7.385  More specifically, the non-confidential vers ion of the application (Exhibit GTM-1, 
Section II.B.1), indicates only that the evidence of normal value "is documented with the commercial 
invoice of the investigated product documented in Annex 2.1."441  It also contains square brackets, 
indicating that confidential information has been redacted.  "Anexo 2" is a table containing 14 columns, of which nine contain square brackets indicating that confidential information has been 
redacted, and five contain information.  The informat ion included in the table sets out the tariff lines, 
the description of the product under investigation – standard welded conductio n tubing and standard 
black conduction tubing – the conversion factor of the unit of measurement for the tariff line, the 
US dollar exchange rate and, finally,  the adjusted price (US dollar per tonne).  This adjusted price for 
both types of tubing is given as "707".  This Anne x makes reference to "documentation of the internal 
price in Guatemala" in Annex 2.1, but does not  further describe or summarize the documents 
containing the supporting evidence.  Therefore, we consider that there is no summary in sufficient 
                                                     
 
436 The former was annexed to Mexico's first written submission;  the latter was submitted in response 
to the Panel's request and following the Panel's adoptio n of special BCI Procedures after the first meeting. 
 
437 Exhibit GTM-3. 
 
438 Exhibit GTM-2. 
 
439 The lawyer's cover letter for the application states:  "My client considers that the information 
omitted in the square brackets in the public version of Volumes I and II, and the annexes expressly mentioned 
therein is bound to confer on them a confidential char acter, for which reason the Honorable Unit is kindly 
requested under the terms of Article 158 of the Foreign Trade Act Regulations to assi gn such character to the 
said information, since its disclosure would have the consequence of harming its competitive position and its 
ability to obtain information relevant to the running of th e investigation".  Exhibit GTM-1.  The cover letter to 
Hylsa's response to the "prevención" in Exhibit GTM-3 contains a similar paragraph.  The "prevención" in Exhibit GTM-2 indicates Economía's guidelines as to how confidential information should be treated in 
responding to the questions contained therein, including the need submit both a confidential and public version 
of the responses, with the public version redacting the conf idential information, as well as the need to justify the 
confidential treatment of the information, and to summarize it. 
 
440 Exhibit GTM-1.  The cover letter to Hylsa's response to the "prevención" in Exhibit GTM-3 
contains a similar paragraph. 
 
441 There is also a brief response expl aining why, in the applicant's vi ew, the sales prices presented are 
proper.  Exhibit GTM-1. 
 WT/DS331/R 
Page 131 
 
 
  detail to permit a reasonable unde rstanding of the substance of the information submitted in 
confidence.442  
7.386  In response to questioning443, Guatemala clarified that it is also alleging that the treatment of 
information contained in the petitioner' s 17 September 2002 response to Economía's 
3 September 2002 "oficio" pertaining to the basis for the possible inclusion of certain structural tubing 
within the scope of the product definition was inconsistent with Mexico's obligations under 
Articles 6.5 and 6.5.1.444  In particular, Guatemala alleges th at this information was designated as 
"confidential" without justification and without a re quirement to provide a non-confidential summary.   
7.387  Here again, the applicant provided a non-confid ential version of the document concerned.  In 
the non-confidential version, certain parts of the r esponses in the document were deleted from the text 
and replaced by blank square brackets, or – in th e case of the Annexes – simply by title pages with 
absolutely no contents.  The s ubstance was left out.  In respon se to Economía's indication in the 
3 September 2002 "oficio" that any request for conf idential treatment had to be justified and a non-
confidential summary provided445, Hylsa's cover letter contains an explanation as to why it treats the 
information as "confidential", and why summarizati on of certain confidential information was not 
possible.446  No non-confidential summary of the omitte d confidential information was submitted to 
Economía, nor is there any indication that Economía  requested such a non-confidential summary once 
it had seen how information therein had been treated.447 
                                                      
442 Exhibit GTM-3 indicates that, in response to a question concerning evidence of normal value in 
respect of standard black tubing, Hylsa responded:  "There is documentation of normal value in the Guatemalan 
market regarding black standard tubing and the corresponding adjustments.  See annex 13 [Confidential]".  Annex 13 is entitled "Documentación del Valor Normal para la tubería estándar negra y ajustes  
correspondientes" (Documentation of normal value for black standard tubing and corresponding adjustments);  
Annex 13.1 is entitled "Documentación del precio interno de Guatemala" (Documentation of domestic price in Guatemala);  Annex 13.2 is entitled "Cálculo para obtene r Dólares por Tonelada" (Calculation to obtain dollars 
per tonne);  Annex 13.4 is entitled " Documentación del domicilio de la empresa que expide el documento que 
muestra el valor normal" (Documentation of the domici le of the company issuing the document that shows 
normal value);  Annex 13.5 is entitled "Estimación del margen de dumping para la tubería estándar negra" 
(Estimate of the margin of dumping for standard black tubing).  The contents of all of these annexes are entirely 
redacted.  (Annex 13.3 includes non- confidential data on exchange rates). 
 
443 Guatemala's response to question 115 from the Panel. 
 
444 Exhibit GTM-31. 
 
445 Exhibit GTM-21. 
 
446 The cover letter states:  "My client considers that the information omitted between the square 
brackets in the public version of the attached, and the annexes expressly specified therein, must be treated as 
confidential, for which reason, pursuant to Article 158 of the Foreign Trade Act Regulations they kindly request 
the Honorable Unit to confer a confidential character on the said information, since its disclosure would have the consequence of harming their competitive position and ability to obtain information relevant to the running 
of the investigation.  Accordingly, pursuant to Article 153 of the Foreign Trade Act Regulations, and as 
indicated herein, my client has attached a public version of the said information which contains enough elements to allow a reasonable and comprehensive understanding of the matter, while omitting from the said version 
certain aspects and information which, being by nature confidential and consisting of numerical and 
identification data, are not susceptible of summary."  Hy lsa thus requested:  "… that confidential treatment be 
afforded to the replies and annexes hereto as indicated, since their disclosure could affect the competitive 
position of the company and cause my client substantial harm". 
 
447 Mexico, however, asserts that the non-confidentia l version contains a summary of the confidential 
information.  See, for example, Mexico's rebuttal submission, para. 215.  Mexico submits Exhibit MEX-5 to WT/DS331/R 
Page 132  
 
 7.388  More specifically, the non-confidential version of the document in question contains certain 
responses by Hylsa-DAT regarding the scope of the product under investigati on.  Certain of the 
information in the responses is redacted as "confid ential".  In addition, the entire content of the 
six Annexes
448 is all redacted as "confidential".  The docum ent does not further describe or summarize 
the redacted portions in the body of the document, nor the annexes containing the supporting 
evidence.  Therefore, we consider that there is no summary in sufficient detail to permit a reasonable 
understanding of the substance of the in formation submitted in confidence.   
7.389  Guatemala takes issue with two main aspects of Economía's treatment of the information 
concerned.  First, the application and Exhibit GT M-31 contain a general statement indicating why the 
applicant considered that the information should be  treated as confidential.  Guatemala alleges that 
there is no indication on the record of the investiga tion that Economía assessed the sufficiency of this 
justification as to whether "good cause" existed to  afford confidential treatment.  Second, the 
applicant also asserts that the non-confidential versi on of the application contained sufficient detail to 
permit a reasonable understanding of  the substance of the information, while omitting certain 
elements and data that, due to their confidential na ture and as they consiste d of numerical data and 
identification numbers, were not susceptible of summary.449  In this context, Guatemala asserts that, 
even if the confidential treatment was justified, it was not impossible for the applicant to provide non-
confidential summaries.  Nevertheless, the in formation was omitted and not summarized.   
7.390  We note that, in respect of both the initiation evidence on normal value, and its 17 September 
responses, the applicant did provide reasons which, in its vi ew, justified non-disclosure and non-
summarization of the information concerned.  
7.391  Guatemala argues that Economía did not evalua te whether "good cause" had been shown for 
the underlying information to be treated as confiden tial.  Guatemala also asserts, in respect of the 
price quote and the invoice, that the disclosure of  the information would not have affected the 
applicant's competitive position or its ability to obta in further information, as:  the information 
concerned prices within Guatemala; the exporter (a nd not the applicant) would have the responsibility 
of seeking such information post-initiation; and – with  the exception of the name of the buyer or of 
the requester of the price quote – the inform ation was not confidential by nature.   
7.392  Mexico argues before us th at Economía's practice is only to record explicitly reasons for 
rejecting  a request for confidential treatment – wher e Economía accepts such a request, it makes no 
explicit indication, but simply accords c onfidential treatment to the information.450  In the instant case, 
                                                                                                                                                                     
substantiate its assertion that it transmitted this non-c onfidential version to Tubac's legal representative.  
However, the issue is not whether a non-confidential version of the submission was transmitted;  but rather, 
whether an adequate non-confidential summary  of the confidential information was transmitted. 
 
448 The public information in the responses and the titles of these annexes indicate that they include 
documents and testimonials and invoices from producers/distributors concerning the commercial practice of 
acquiring structural tubing without hydrostatic testing and using it for conduction; information from importers of certain types of structural tubing;  estimates of the breakdown of national production of the product under 
investigation;  and testimonials on the substitutability  and correspondence of the data provided with the 
description of the product. 
 
449 Exhibit GTM-1. 
 
450 Mexico outlined the provisions of its domestic legi slation and regulations in respect of the treatment 
of confidential information throughout an anti-dumping i nvestigation, in particular  Article 80 of its Foreign 
Trade Act and Articles 148-158 of its associated regulatio ns.  Briefly, Article 80 of Mexico's Foreign Trade Act 
provides that restricted commercial  information and confidential government information shall not be available 
to any interested parties.  Article 148 of the Regulations says that summaries of confidential information and WT/DS331/R 
Page 133 
 
 
  we find that there is no such explicit indication in the record.  However, it is implicitly clear that 
Economía accepted the assertions of the applicant and did not oppose the request for confidential 
treatment.  The record does not contain any explicit  indication as to how, or the extent to which, 
Economía assessed this justification for non-summari zation or reached a reasoned conclusion on this 
matter.  However, again, implicitly, the record  reveals that Economía accepted the applicant's 
assertions relating to non-disclosure and non-summarization.451  
7.393  Recalling the standard of review, as we have stated above, we do not consider that the 
obligations contained in Article 6.5 set forth exactly  how an investigating authority should or must 
evaluate a request for confidential treatment;.  Nor do we consider that this provision sets forth how 
an investigating authority should or must indicate (explicitly or otherwise in the record of the 
investigation) how, and the extent to which, it assesse d an applicant's assertion to conclude that "good 
cause" existed for the information to be treated as co nfidential within the meaning of Article 6.5, or 
how, and the extent to which, it assessed an asserti on that summarization was not possible within the 
meaning of Article 6.5.1.   
7.394  We consider that, in this case, Mexico a dhered to the minimum threshold permitted by 
Article 6.5 and 6.5.1 in its treatment of the confid ential information concerned.  In particular, the 
investigation file indicates clearly that Hylsa soug ht confidential treatment and provided reasons for 
its request and that Hylsa also explained why, in its opinion, it was impossible to summarize certain information.  As said above, we infer from the fa ct that Economía  granted the confidential treatment 
that Economía accepted the request and the explanati ons, and we point out that the cited provisions of 
the Agreement contain no express requirement re garding the nature of the evaluation by the 
                                                                                                                                                                    
 
restricted commercial information presented in accordance  with Article 153 of the Regulations (Article 148.II) 
shall be treated as public information.  Article 150 defi nes restricted commercial information as information that 
meets Articles 152, 153, and 158 of the Regulations and information the disclosure of which may result in substantial and irreversible material and financial harm to the owner of the information, inter alia . Article 153 
establishes that the party interested in ensuring the co nfidential or restricted co mmercial treatment of his 
information and documents shall submit a public summary thereof to the Ministry. This summary shall be presented in writing and shall be suff iciently detailed to allow anyone consulting it to have a reasonable and 
comprehensive understanding of the subject.  Article 158 of the Regulations establishes that the interested party 
concerned shall comply with the following requirements: submit the information in writing; explain why his information is of a confidential or re stricted commercial character; present a summary of the information or, if 
applicable, an explanation of the reasons why it cannot be summarized; and, if applicable, give his express 
consent in writing that the information marked as confiden tial or restricted commercial may be examined by the 
legal representatives of the other interested parties. 
 We are not called upon to evaluate the consistency of these legal and regulatory provisions as such  
with Mexico's obligations under Article 6.5 of the Agre ement, and recall that the provisions of a Member's 
internal law do not justify a violation of its interna tional obligations.  See, e.g. Appellate Body Report, Brazil - 
Aircraft (Article 21.5 -Canada ), para. 46. 
 
 
451 We note, in passing, Mexico's assertion that Tub ac also asserted in the course of the underlying 
investigation that numerical data was not susceptible of  summary, and Economía afforded confidential treatment 
on the same basis as it had to Hylsa's information.  Tubac asserted, for example, in its 14 May 2002 "escrito" 
(Exhibit GTM-12, pp. 2-3; see also Exhibit  GTM-7, para. 17) that it had produced a public version of its confidential submissions, redacting certain confidential information between square brackets.  Tubac also 
asserted that, as certain information could consist of in ternal accounting or financial data of the exporter or a 
third party, of which there were not very many, disclosure might cause irreversible damage to Tubac or third parties.  Tubac further asserted that certain data were not susceptible of summary due to their numerical nature.  
There is no indication on the record th at such assertions on the part of T ubac were treated an y differently than 
the similar assertions made by Hylsa.  We would expect an IA to afford such even-handed treatment to both 
interested parties. 
 WT/DS331/R 
Page 134  
 
 investigating authority.  We would have preferred an  explicit indication, on the part of Economía, as 
to why it considered that the assertions of "good cau se" for confidential treatment of the information 
concerned were merited.  We would also have pref erred an explicit indication by Economía as to how 
it went about evaluating the existence of the "excepti onal circumstances" referred to in Article 6.5.1 in 
order to justify the non-summarization of certain conf idential information.  In this respect, we recall 
that a main reason given for information not be ing susceptible to summarization was that it was 
numerical in nature.  We note that Mexico's ow n domestic legal framework explicitly envisages the 
possibility that information on costs and prices may be  presented in ranges of percentage variation not 
exceeding a factor of 10 per cent.
452  This provision indicates to us Mexico's (and Economía's) own 
official recognition that at least certain numeri cal information may be susceptible of summarization.453  
However, we do not see any indication in the reco rd that any efforts were made to explore 
possibilities for presentation of the confidential info rmation concerned in a manner that, while not 
compromising the confidentiality of the information,  would have permitted inte rested parties a higher 
degree of access to it in terms of the non-conf idential record of the investigation.   
7.395  Nevertheless, for the reasons a bove, the Panel finds that Guatem ala has not established that 
Mexico violated its obligations under Article 6.5 and 6.5.1 in its treatment of requests for 
confidentiality and assertions of reasons why summa rization of confidential information was not 
possible.   
7.396  We also note that Article 6.5 acknowledges, in th e territory of certain Members, disclosure of 
confidential information pursuant to a narrowly-dr awn protective order may be required.  We are 
aware that Mexico has in a place a legislative/ regulatory framework governing the treatment of 
confidential information throughout a Mexican anti- dumping investigation.  Under that framework, 
legal representatives of all interested parties may have full access to confidential information, upon satisfying a number of conditions an d filing the requisite documentation.
454  Furthermore, Mexico 
submits in evidence a request (by Tubac's legal representative) for access to certain confidential 
information.455  Mexico asserts that this proves that there was no prejudice to the Guatemalan 
exporter, as it had the right to have access to the conf idential information in the application at the time 
of the initiation of the investigation, and, in fact, av ailed itself of that right on at least one occasion.  
However, Guatemala contends that Mexico's evidence and argumentation about access to the 
confidential record by Tubac's legal representative is erroneous.  According to Guatemala, Tubac's 
legal representative never requested access to any part  of the confidential record, including the 
confidential version of the application, as she did not satisfy all of the conditions under Mexican law 
pertaining to requesting access to the confidential reco rd, and accordingly never did so.  In particular, 
Guatemala asserted: 
"Guatemala confirms that Tubac did not have access to the 
information supplied by the applican t and that in the end it was used 
as ‘facts available’ for the purpose of the determination of dumping.  
As the attached statement explains: 
                                                      
452 Article 149 of Mexico's Regulations associated with its Ley de Comercio Exterior. 
 
453 In response to question 121 from the Panel, Mexico stated that Article 149 of Mexico's Regulations 
has not been applied in the administrative practice of Economía and thus it was not possible to clarify the scope of this provision. 
 
454 See, in particular, Articles 159- 161 of Mexico's Regulations associ ated with is Ley de Comercio 
Exterior. 
 
455 Exhibit MEX-2. The date of th e request for access is dated Novemb er 2002 (wher eas the initiation 
occurred in August 2001, and the Preliminary Determination, public hearing and communications arising out of 
the public hearing, including Exhibit GTM-31, were all submitted prior to November 2002). WT/DS331/R 
Page 135 
 
 
  According to Article 80 of the Fore ign Trade Act and to Articles 159, 
160 and 161 of its Regulations, in order for the legal representatives 
of the parties interested in the proceedings to have access to the 
confidential information, a request in writing must be submitted to the Ministry expressing the need for review of the confidential 
information, and must be accompanied by the following:   
(a) The duly requested official form ‘Accreditation of Legal 
Representative Requesting Access to Confidential Information’.  
(b) Surety (policy) for the amount set by the Ministry in accordance 
with the Federal Fiscal Code .  The amount is currently 
$4,200,000.00 MN. 
(c) A written statement from the co mpany represented (Tubac in this 
case) to the effect that the legal representatives have not been partners or directors or acted as a salaried agents or representatives of the company or other interested pa rties during the previous year.  
(d) Documents showing that the representatives are resident in 
Mexico. 
Upon submission of the request, Economía issues a document 
authorizing or refusing access.  It is Economía's administrative practice to include in the public administrative file both the request for access and the document granting or refusing it.   
In this investigation Tubac's legal representatives had not even the 
possibility of gaining access to the confidential information because 
not all the requirements were met for filing the request."
456   
7.397  We do not fully understand the decision of Tub ac to participate in this investigation 
exclusively on the basis of the non-confidential record.457  We commend Mexico on maintaining a 
domestic legal and regulatory framework that permits legal representatives of interested parties in an 
anti-dumping investigation, under certain circumstances,  to access the confid ential record.  We note 
that some of the conditions for access are somewhat stringent, and may, as in the present case, affect 
the legal representation of an interested party on  the basis of the confidential record of the 
investigation.  However, we do not see these conditi ons as being so insurmountable as to bar effective 
legal representation of an informed interested pa rty.  For example, under the bond requirement, the 
company would have to pay approximately US$2,000.458   
7.398  Notwithstanding the foregoing, while such a sy stem of limited disclosure is certainly 
envisaged by Article 6.5459, and may certainly act as a supplement to a Member's fulfilment of its 
                                                      
456 Guatemala's response to question 104 from the Pane l.  See also Guatemala' s response to questions 
117-118 from the Panel and Exhibit GTM-32.  See Articles 159-161 of Mexico's Regulations to the Ley de Comercio Exterior. 
 
457 At least, Guatemala has not brought to our attention in these Panel proceedings any other 
representative of Tubac that did have access to the confidential record of this investigation. 
 
458 See Mexico's response to question 184 (b) from the Panel. 
 
459 In particular, the footnote reading: WT/DS331/R 
Page 136  
 
 obligations under Article 6.5, we find no textual basi s in Article 6.5 that would indicate to us that 
permitting limited access to the entire confidential r ecord to individuals fulfilling certain conditions, 
provides a derogation from, or replaces, the obligations  of an investigating authority under Article 6.5 
to require justification for treatment of information as  confidential and, if such treatment is justified, 
to require non-confidential summaries of the confiden tial information, or, alternatively, to require 
justification for the non-summari zation of certain information.
460   
7.399  For these reasons, we find that Guatemala has failed to establish that Mexico has acted 
inconsistently with its obligations under the chapeau of Article 6.5 and paragraph 6.5.1 in this case.  
2. Contents of Preliminary and Final Determinations 
7.400  We recall Guatemala's allegation that Mexico violated Article 12.2 of the Anti-Dumping 
Agreement  as it failed to provide adequa te and reasoned explanations in  either the Preliminary or 
Final Determination461 on the decision of Economía to change the definition of the product under 
consideration to include tubing from 4" to 6" in its Preliminary Determination.462  W e  r e c a l l  o u r  
finding that Mexico acted inconsistently with its obligations under para graph 7 of Annex II and 
Article 6.8 in respect of its use of facts availabl e to reach its dumping de termination, including in 
respect of the change in the product definiti on to include product with diameters from 4-6".463  In light 
of our finding of incons istency with these provisions, we find it neither necessary nor appropriate to 
address Guatemala's Article 12.2 claim of inadequate notice in respect of the change in product definition to include with diameters from 4-6".  We  note that our finding concerning paragraph 7 of 
Annex II and Article 6.8 addressed, among othe r things, the explanation of the dumping 
determinations in Mexico's notices.  Having found a violation of the  requirements set forth in 
paragraph 7 and other paragr aphs of Annex II along with Article 6. 8 in relation to Economía's resort 
to "facts available" in reaching its dumping determinat ion, the question of whether the notice of either 
the Preliminary or Final Determinations is "suffi cient" under Article 12.2 is immaterial.  We agree 
with the view of the Panel in EC - Bed Linen  that a notice may adequately explain the determination 
that was made, but if the determination was subs tantively inconsistent with the relevant legal 
obligations, the adequacy of the notice is meaningless.  By the same token, it is meaningless to 
consider whether the notice of a decision that is su bstantively inconsistent with the requirements of 
the Anti-Dumping Agreement  is, as a separate matter, insufficien t under Article 12.2.  A finding that 
the notice of an inconsistent action is inadequate does not add anything to the finding of violation, to 
                                                                                                                                                                    
 
 
"Members are aware that in the territory of  certain Members disclosure pursuant to a 
narrowly-drawn protective order may be required." 
 
460 We find support for our view in e.g. Panel Report, US – Oil Country Tubular Goods Sunset Reviews 
(Article 21.5 – Argentina) , para. 7.137. 
 
461 Guatemala's argumentation was not always consistent concerning the scope of its claim under 
Article 12.2.  For example, in its rebuttal submission, the pertinent section is entitled "Mexico failed to refute 
Guatemala's claim that the disclosure of the findings and conclusions in the preliminary determination  is 
inadequate" (emphasis added).  In other places, such as Guatemala's first written submission, para. 336, 
Guatemala refers to both the Preliminary and Final Determin ations.  As the panel request, and at least certain of 
Guatemala's arguments, refer to both  the Preliminary and Final Determinations (see document WT/DS331/2, 
para.  (n)), we have treated Guatem ala's claim as referring to both the Preliminary and Final Determinations. 
 
462 Guatemala confirmed to us that it abandoned its additional complaint about the "inclusion" of 
certain structural tubing in the final determination.  See Guatemala's response to questions 128-130 from the 
Panel. 
 
463 We refer to our finding, s upra , para.7.197. 
 WT/DS331/R 
Page 137 
 
 
  the resolution of the dispute before us, or to the understanding of the obligations imposed by the Anti-
Dumping Agreement .  We therefore make no findings in respect of this claim.464   
3. Essential facts  
7.401  Guatemala claims that  Mexico  violated Article 6.9 failing to disclose to Tubac the "essential 
facts" under consideration in the investigation.  According to Guatemala, Tubac was never informed 
in any way before the Final Determination that: (1) facts available, in particular information submitted 
by the applicant, would be used to calculate the margin of dumping; or that (2) certain structural 
tubing would be included in the scope of the product under investigation and the anti-dumping 
measure imposed.  We recall our earlier finding, in respect of Economía's dumping determination that 
Economía had acted inconsistently w ith paragraph 6 of Annex II, and thus Article 6.8, by failing to 
inform Tubac that its data were being rejected and of the reasons for that decision, and by failing to 
provide Tubac with an opportunity to submit further e xplanations.  In light of this finding, we do not 
consider it necessary to also address Guatemala's allegations under Article 6.9.  
G. CLAIMS UNDER ARTICLES 1 AND 18 OF THE ANTI-DUMPING AGREEMENT  
7.402  Guatemala alleges that Mexico – through Economía  – acted inconsistently with its obligations 
under Articles 1 and 18 of the Anti-Dumping Agreement  in having contravened th e other provisions of 
the Anti-Dumping Agreement  cited in its complaint.  We note th at Guatemala's claims under Articles 1 
and 18 of the Anti-Dumping Agreement  are dependent claims, in the sense that they depend entirely 
on findings that Mexico has violated other provision s of the Agreement.  In light of the dependent 
nature of Guatemala's claims under Articles 1 and 18 of the Agreement, and of our findings, supra , of 
violations of other provisions, we see no useful purpose to deciding them.465  In particular, we do not 
believe that deciding such dependent claims will pr ovide any additional guidance as to the steps to be 
undertaken by Mexico in order to implement our recommendations regarding the violations that we 
have found. 
VIII. CONCLUSIONS AND RECOMMENDATION 
8.1 For the reasons set out above, we conclude th at Mexico's initiation of the investigation, the 
conduct of the investigation and the imposition of a definitive anti-dumping measure on imports of 
black and galvanized steel pipes and tubes from Guat emala is inconsistent with the requirements of 
the Anti-Dumping Agreement , in that: 
  (a) Economía's determination that there was sufficient evidence of dumping and injury to 
justify initiation of the investigation is in consistent with Mexico's obligation under 
Article 5.3 of the Anti-Dumping Agreement  and, consequently, its failure to reject the 
application in the absence of sufficient evid ence of either dumping or injury to justify 
proceeding with the case is inconsistent with Article 5.8 of the Anti-Dumping 
Agreement ;  
 
 (b) Economía acted inconsistently with Mexi co's obligations under Articles 3.1, 3.2, 3.4 
and 3.5 of the Anti-Dumping Agreement  in relying, without sufficient justification, 
upon injury data limited to three six-mont h periods (July-December) in the years 
1998, 1999 and 2000 in its determination of injury and causation, as proposed by the applicant;  
                                                     
 
464 See Panel Report, EC - Bed Linen , paras. 6.259 - 6.261.  
 
465 We note that a similar approach was followed, e.g., in Panel Reports, Guatemala – Cement II, 
para. 8.296; US – DRAMS, para. 6.92; Argentina - Poultry Anti-Dumping Duties , para. 7.369. WT/DS331/R 
Page 138  
 
  
 (c) Economía acted inc onsistently with Mexico's obligati ons under Articles 3.1 and 3.2 to 
conduct an objective examination of positive evidence by using a methodology premised on a limited sample and unsubs tantiated assumptions in estimating the 
volume of imports from sources other than Guatemala;  
 
 (d) Economía acted inconsistently with Mexi co's obligations under Articles 3.1, 3.2, 3.4 
and 3.5 of the Anti-Dumping Agreement  to conduct an objective examination on the 
basis of positive evidence of injury to the domestic industry – as that term is defined 
in Article 4.1 – by failing to gather and analyse representative and consistent data 
pertaining to the domestic industry, in par ticular the data concerning the financial 
indicators of the domestic industry as a whole, as this had been defined by Economía; 
  (e) Economía acted inconsistently with Mexi co's obligations under Articles 3.1, 3.2, 3.4 
and 3.5 of the Anti-Dumping Agreement in its analysis of injury and causation by 
failing to adequately analyse and properly attribute injury to the domestic industry 
caused by a decrease in exports;  
  (f) Economía acted inconsistently  with Mexico's obligations under paragraphs 3 and 5 of 
Annex II and Article 6.8 in deciding to reject  in their entirety the data that Tubac had 
submitted and to rely instead on facts available; 
 
 (g) Economía acted inconsistently with Me xico's obligations under paragraph 6 of 
Annex II and Article 6.8 by failing to inform Tubac that its data were being rejected 
and of the reasons for that decision, and by failing to provide Tubac with an opportunity to submit further explanations; 
 
 (h) Economía acted inconsistently with Me xico's obligations under paragraph 7 of 
Annex II because in applying as facts availa ble the normal value evidence that was 
provided by the applicant and used in Econom ía's initiation decision, it failed to use 
"special circumspection".   
 
8.2 In the light of our findings above, we further conclude that: 
 (a) Guatemala failed to establish that, in the circumstances of this case, Economía acted 
inconsistently with Mexico's obligations  under Articles 3.1, 3.2, 3.4 and 3.5 to 
conduct an objective examination of positive evidence by relying on data from an 
investigation period that terminated eight  months prior to the initiation and about 
two years prior to the imposition of the definitive measures; 
  (b) Guatemala failed to establish a prima facie  case of inconsistency with Articles 3.1 
and 3.2 in respect of Economía's analysis of the price effects of imports from Guatemala; 
 
 (c) Guatemala failed to establish that Econom ía acted inconsistently with Mexico's 
obligations under Articles 3.1, 3.2, 3.4 3. 5 or 5.4 by failing to conduct an objective 
examination of positive evidence in respect of  the data collected and analysed in its 
determination of injury to the domestic industr y (as that term is defined in Article 4.1) 
in light of the changes of the product defi nition to include 4"-6" product and certain 
structural tubing; 
 WT/DS331/R 
Page 139 
 
 
   (d) Guatemala failed to establish that Econom ía acted inconsistently with Mexico's 
obligations under Articles 3.1, 3.2, 3.4, or 3.5 in its consideration of the behaviour of 
costs in the context of the in jury and causation analysis;  
  (e) Guatemala failed to establish that Econom ía acted inconsistently with Mexico's 
obligations under the chapeau of Article 6.5 and paragraph 6.5.1 in its treatment of 
confidential information in this case. 
 8.3 In the light of our findings, it was not necessary for us to address, and we have exercised 
judicial economy, in respect of: 
 (a) Guatemala's claims under Articles 2.1, 2.4 and 2.6 relating to the changes to the scope 
of the product under investigation; 
  (b) Guatemala's claims under Articles 6.2, 6. 4, 6.7, 6.9 and 6.13 relating to Economía's 
rejection of the information submitted by Tubac and its resort to facts available;  
 
 (c) Guatemala's transparency claim under Ar ticle 12.2 relating to the contents of the 
Preliminary and Final Determinations in resp ect of the inclusion of 4"-6" product in 
the scope of the product definition; 
  (d) Guatemala's claims under Article 6.9 pe rtaining to the alleged failure to disclose 
"essential facts" pertaining to the resort to facts available and the inclusion of certain 
structural tubing in the scope of the product definition;  and 
  (e) Guatemala's consequential cl aims under Articles 1 and 18 of the Anti-Dumping 
Agreement . 
 
8.4 Under Article 3.8 of the DSU , in cases where there is infringement of the obligations assumed 
under a covered agreement, the action is considered prima facie  to constitute a case of nullification or 
impairment of benefits under that agreement.  Accordingly, we concl ude that to the extent the Mexico 
has acted inconsistently with certain provisions of the Anti-Dumping Agreement , it has nullified or 
impaired benefits accruing to Gu atemala under that Agreement.  
8.5 Article 19.1 of the DSU  reads: 
Where a panel or the Appellate Body conclud es that a measure is inconsistent with a 
covered agreement, it shall recommend that the Member concerned bring the measure 
into conformity with that agreement.  In  addition to its recommendations, the panel or 
Appellate Body may suggest ways in which the Member concerned could implement 
the recommendations. (footnotes omitted) 
8.6 Pursuant to Article 19.1 of the DSU , having found the inconsistencies with the Anti-Dumping 
Agreement  set out above, we "recommend that [Mexico] br ing the measure into conformity with that 
agreement".   
8.7 Guatemala also requests that the Panel u se its discretion under Article 19.1 to make 
suggestions as to the implementation of any recomme ndations.  As third parties, the United States 
asserts that the Panel should decline Guatemala's request, while the European Communities submits 
that a panel may make suggestions where appropriate  and that certain violations are so "fundamental" 
that the only possible remedy would be revocation of the anti-dumping measure.  Japan, too, would be 
in favour of a Panel suggestion that Mexico revoke the anti-dumping measure due to the violations of 
the initiation obligations. WT/DS331/R 
Page 140  
 
 8.8 In this respect, under paragraph 19.1 a panel "may", i.e., has discretion to, suggest ways in 
which a Member could implement the recommendation that the Member concerned bring the measure 
into conformity.  Clearly, however, a pane l is not required to make a suggestion.  
 
8.9 In this case, we have found that Mexico h as not acted in a manner consistent with its 
obligations concerning many of the steps in the in itiation and conduct of the investigation on imports 
of steel pipes and tubes from Guatemala.  In pa rticular, we have concluded that an unbiased and 
objective investigating authority could not properly have determined, based on the evidence and 
information available at the time of initiation, that there was sufficient evidence to justify initiation of 
the anti-dumping investigation; and that Mexico  conducted the anti-dumping investigation in a 
manner inconsistent with its oblig ations relating to the determin ations of dumping, injury and 
causation under various provisions of the Anti-Dumping Agreement .  We consider these multiple 
inconsistencies we have found to be fundamental and pervasive.   
8.10 In this respect, we note that other panels  have suggested that revocation would be an 
appropriate route for implementation where they  have found multiple, fundamental and pervasive 
violations of the obligations governing the initiation and conduct of an inves tigation.  For example, 
the panel in Guatemala-Cement II  determined that Guatemala had acted inconsistently with its 
obligations under the Anti-Dumping Agreement  in its imposition of anti-dumping duties on imports of 
grey portland cement from Mexico, and found these violations to be of a "fundamental nature and 
pervasive".  That panel continued:   
"In light of the nature and extent of the violations in this case, we do not perceive 
how Guatemala could properly implement our recommendation without revoking the 
anti-dumping measure at issue in this dispute.  Accordingly, we suggest that 
Guatemala revoke its anti-dumping measure on imports of grey portland cement from 
Mexico." 466 
8.11 Similarly, the Panel in Argentina – Poultry Anti-Dumping Duties stated:  
"We have determined that Argentina has act ed inconsistently with its obligations 
under the Anti-Dumping Agreement in its imposition of anti-dumping duties on 
imports of eviscerated poultry from Brazil.  We have found these violations to be of a fundamental nature and pervasive. 
In light of the nature and extent of the viol ations in this case, we do not perceive how 
Argentina could properly implement our recommendation without revoking the anti-
dumping measure at issue in this dispute.  Accordingly, we suggest that Argentina 
repeal Resolution No. 574/2000 imposing definitive anti-dumping measures on 
eviscerated poultry from Brazil."
467 
8.12 Insofar as we find that Mexico has not act ed consistently with its obligations in the 
various phases of the investigation and was in breach from the very outset of the investigation, the Panel suggests revoking the anti-dumping measures applied to steel pipes 
and tubes from Guatemala in order to implement properly the conclusions and 
recommendations identified in this case.   
                                                     
 
466 Guatemala – Cement II, para. 9.6. 
 
467 Argentina – Poultry Anti-Dumping Duties , paras. 8.3-8.7. WT/DS331/R 
Page 141 
 
 
  8.13 We find support for our decision to make th is suggestion in the previous panel reports we 
have cited above.  We emphasize, however, that it is the fundamental and pervasive nature of the 
multiple inconsistencies that we have found in this case  that motivate our decision to make our 
suggestion.   WT/DS331/R 
Page 142  
 
 IX. APPENDICES 
APPENDIX 1 
 
 
WORLD TRADE  
ORGANIZATION  WT/DS331/2 
7 February 2006 
 
 (06-0526) 
 Original:   English 
 
 
MEXICO – ANTI-DUMPING DUTIES ON STEEL PIPES AND TUBES 
FROM GUATEMALA 
 
Request for the Establishment of a Panel by Guatemala  
 
 
 The following communication, dated 6 February  2006, from the delegation of Guatemala to 
the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU. 
 
_______________ 
  
 On 17 June 2005, Guatemala requested consultati ons with Mexico pursuant to Article 4 of the 
Understanding on Rules and Procedures Governi ng the Settlement of Disputes (the "DSU"), 
Article XXIII:1  of the General Agreement on Tariffs and Trade 1994 (the "GATT 1994") and 
Article 17 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and 
Trade 1994  (the "Anti-Dumping Agreement") regard ing the definitive anti-dumping measures 
imposed by Mexico on imports of certain steel pi pes and tubes from Guatemala and the investigation 
leading thereto.    Guatemala and Mexico held consultations on 15 July, 26 August, and 28 September 2005.  
These consultations unfortunately failed to resolve th e dispute.  Accordingly, Guatemala respectfully 
requests, pursuant to Article 6 of the DSU and Article 17.4 of the Anti-Dumping Agreement, that at 
its next meeting on 17 February 2006, the Dispute Settlement Body establish a panel with the standard 
terms of reference set out in Article 7.1 of the DS U to examine this matter and the claims set forth 
below.    
 The investigation leading to the imposition of  the measures at issue was initiated by the 
Mexican investigating authority, the Secretaría de Economía ("Economía")
1, on 24 August 2001.2   
  On 13 March 2002, Economía issued a preliminary resolution, in which it found that the imports under investigation were being dumped at ma rgins of 3.41 per cent for standard galvanized 
                                                     
 
1 The Secretaría de Economía is now kno wn as the Ministerio de Economía. 
 
2 Resolución por la que se acepta la solicitud de parte interesada y se declara el inicio de la 
investigación antidumping sobre las importaciones de t ubería estándar, mercancía clasificada en las fracciones 
arancelarias 7306.30.01 y 7306.30.99 de la Tarifa de la Ley del Impuesto General de Importación, originarias de la República de Guatemala, independientemente del país de procedencia , 24 August 2001 (the "Initiation 
Resolution"). WT/DS331/R 
Page 143 
 
 
  pipes and tubes and 12.82 per cent for standard "b lack" pipes and tubes from known exporters, and 
25.83 per cent and 26.59 per cent, respectively,  from all other exporters, and that these dumped 
imports were causing injury to the Mexican industry.3  Thus, Economía imposed provisional anti-
dumping duties on those products at the above mentioned rates.    
 On 13 January 2003, Economía issued its fina l resolution, in which it found dumping margins 
of 29.93 per cent for standard galvanized pipes a nd tubes and 35.26 per cent for standard "black" 
pipes and tubes, and that these imports were causing injury to the Mexican industry.
4  Accordingly, 
using the lesser duty rule, Economía imposed defin itive anti-dumping duties at the rate of 25.87 per 
cent for both galvanized and "black" pipes and tubes from all exporters.5 
 
 Article 1 of the Anti-Dumping Agreement requi res that "[a]n anti-dumping measure shall be 
applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to 
investigations initiated and conducted in accordance with the provisions of [the Anti-Dumping]  
Agreement."  In the light of this requirement , and based on Article VI of the GATT 1994 and the 
Anti-Dumping Agreement, Guatemala considers that  Mexico's definitive anti-dumping duties and the 
investigation leading thereto are inconsistent with  Mexico's obligations under the provisions of the 
Anti-Dumping Agreement hereinafter cited in the following respects:    Claims Relating to the Initiation of the Investigation
: 
 
 (a) The application for the investigation fa iled to contain sufficient evidence either of 
dumping, injury or a causal link to justify the initiation of an investigation.  Mexico 
then initiated the investigation without pr operly determining whether the application 
for the investigation contained sufficient evidence of dumping, injury and a causal 
link to justify the initiation, and without properly examining the accuracy and 
adequacy of the evidence provided in the a pplication.  These failures are inconsistent 
with Articles 5.2, 5.3, and 5.8 of the Anti-Dumping Agreement. 
 Claims Relating to the Product under Consideration/Like Product
: 
  (b) In the Initiation Resolution, Mexico  provided a definition of the product under 
consideration and the like product.  During th e course of the investigation, however, 
Mexico failed to adhere to and improper ly changed its definitions of the product 
under consideration and the like product without any objective examination of 
positive evidence regarding these definitions.  As a result, Mexico failed to conduct 
an unbiased and objective investigation and made findings of dumping, injury and a 
causal link with respect to products that  were not properly investigated.  These 
failures are inconsistent with Articles 2.1, 2.4, 2.6, 3.1, 3.2, 3.4, 3.5, 3.6, 4.1, 5.4, 6.4 
and 6.9 of the Anti-Dumping Agreement. 
 
                                                     
 
3 Resolución preliminar de la investigación antidumping sobre las importaciones de tubería estándar, 
mercancía actualmente clasificada en las fracciones arancelarias 7306.30.01 y 7306.30.99 de la Tarifa de la 
Ley del Impuesto General de Importación, originarias de la República de Guatemala, independientemente del país de procedencia , 13 March 2002 (the "Preliminary Resolution"), para. 197. 
 
4 Resolución final de la investigación antidumping sobre las importaciones de tubería estándar, 
mercancía actualmente clasificada en las fracciones arancelarias 7306.30.01 y 7306.30.99 de la Tarifa de la 
Ley de los Impuestos Generales de Importación y de Exportación, originarias de la República de Guatemala, 
independientemente del país de procedencia , 13 January 2003 (the "Final Resolution"), paras. 115, 273. 
 
5 Ibid., paragraph 275. WT/DS331/R 
Page 144  
 
  (c) As a result of the changes to the defi nitions of the product under consideration and 
the like product during the course of the i nvestigation, Mexico applied its final 
measure to products that were not covered by its investigation and for which it had 
not made determinations of dumping, injury, and a causal link.  This is inconsistent 
with Articles 2.1, 2.6, 3.1, 3.2, 3.4, 3.5, 9.1, 9.3 and 18.1 of the Anti-Dumping 
Agreement. 
 Claims Relating to the Determination of Dumping
: 
  (d) Mexico relied on facts available to dete rmine the margin of dumping for the largest 
Guatemalan exporter of the subject products .  Mexico lacked a basis under Article 6.8 
of the Anti-Dumping Agreement to resort to facts available, and did so without 
properly following the procedures laid out in Article 6.8 and Annex II to the Anti-
Dumping Agreement.  These failures are incons istent with Articles 6.6, 6.8, 6.13, and 
Annex II of the Anti-Dumping Agreement, as well as with the requirements of 
Articles 2.1, 2.2, and 2.4 of the An ti-Dumping Agreement to conduct a fair 
comparison between the export price and the normal value. 
  (e) Mexico's report on the on-the-spot inves tigation of the largest Guatemalan exporter 
contains no grounds to conclude that Mexico  had encountered problems that justified 
recourse to facts available under Article 6.8.   Thus, Mexico failed to disclose to the 
Guatemalan exporters that it had encountered problems at the on-the-spot 
investigation that warranted the rejection of  that exporters' data and the use of facts 
available, contrary to Articles 6.2, 6.4, 6.6, 6.7 and 6.8 of the Anti-Dumping Agreement.  Mexico also failed to provid e any subsequent adequate explanation of 
any problems it had encountered at the on-the-spot investigation or how those 
problems justified its resort to facts availa ble.  These failures are also inconsistent 
with Articles 6.2, 6.4, 6.7, 6.8 and 6.9 of the Anti-Dumping Agreement. 
  (f) Mexico made adjustments to the export price for certain categories of expenses 
without making the symmetrical adjustme nts to the normal value for the same 
categories of expenses that was necessary to achieve a fair comparison between the 
normal value and the export price.  This failu re is inconsistent with Articles 2.1, 2.2 
and 2.4 of the Anti-Dumping Agreement. 
 Claims Relating to the Determination of Injury and a Causal Link
: 
 
 (g) In its determination of injury and a causal link, Mexico relied on a period of 
investigation that ended significantly befo re the initiation of the investigation and 
therefore failed to take into account releva nt data relating to the period immediately 
preceding its investigation, resulting in a determination of injury and a causal link 
that was not based on an objective examinati on or positive evidence.  This failure is 
inconsistent with Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement.   
 
 (h) Mexico improperly limited its injury anal ysis to data relating to six-month periods 
each year within the period of investigation,  resulting in a determination of injury and 
causal link that was not based on an objective examination or positive evidence.  This 
failure is inconsistent with Articles 3. 1, 3.2, 3.4 and 3.5 of the Anti-Dumping 
Agreement. 
  (i) Mexico selectively and inconsistently used data relating to different domestic 
producers, products and groups or  ranges of products, and time  periods, in its analysis 
of the volume and price effects of the impor ts under investigation, of the impact of WT/DS331/R 
Page 145 
 
 
  those imports on investigation on the domes tic industry, and of the causal link, 
resulting in a determination of injury and causal link that was not based on an objective examination or positive evidence.  These failures are inconsistent with 
Articles 3.1, 3.2, 3.4, 3.5, 3.6 and 4.1 of the Anti-Dumping Agreement.   
 
 (j) Mexico's analysis of both the volume of  the allegedly dumped imports and the effect 
of those imports on prices in the domes tic market for like products, and the 
consequent impact of those imports on th e domestic producers of such products, was 
not based on an objective examination or positive evidence.  These failures are 
inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement. 
 
 (k) Mexico failed to evaluate properly all relevant economic factors and indices having a 
bearing on the state of the domestic indu stry listed in Article 3.4, including, inter alia , 
utilization of capacity, inventories, employme nt, wages, and growth.  In addition to 
its failure to consider properly particular listed factors, Mexico's overall analysis of 
the factors listed in Article 3.4 did not conf orm to the standards of Article 3.  These 
failures are inconsistent with Articles 3.1 and 3.4 of the Anti-Dumping Agreement.  
  (l) Mexico's analysis of the causal link between dumping and injury failed to analyse 
properly other known factors, including, inter alia , changes in consumption, cost 
increases, differences in production methods , technology, productivity, decline in 
exports, and imports from other countries, that  were at the same time causing injury 
to the domestic industry, and failed to ensure that injury caused by those known factors was not attributed to the imports  under investigation.  This failure is 
inconsistent with Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement.   
 
Claims Relating to Procedural Matters
: 
  (m) Mexico failed, before making its final determination, to inform the Guatemalan 
exporters of the essential facts under consideration that formed the basis for its decision to apply definiti ve measures, including, inter alia , the facts relating to the 
decision to resort to facts available and to the definitions of the product under 
consideration and the like product.  This failure  is inconsistent with Article 6.9 of the 
Anti-Dumping Agreement. 
  (n) Mexico failed to disclose in its prelimin ary and final resolutions in sufficient detail 
the findings and conclusions reached on all issues of fact and law that were 
considered material by the Mexican authorities, including, inter alia , the reasons for 
Mexico's definition of the product under c onsideration and the like product and its 
resort to facts available to calculate dumping margins for the largest Guatemalan 
exporter.  These failures are inconsistent  with Article 12.2 of the Anti-Dumping 
Agreement. 
 
 (o) Mexico failed to require the applicants to provide non-confidential summaries and to 
disclose properly information that was not shown upon good cause to be confidential or to disclose non-confidential summaries of confidential information.  These failures 
are inconsistent with Article 6.5 of the Anti-Dumping Agreement. 
 
 Guatemala considers that the foregoing methodologies, calculations, comparisons, 
determinations and procedures made or used by th e Mexican authorities in their investigation and the 
imposition of the measures referred to above cannot be reconciled with Article VI of the GATT 1994, 
Articles 1 and 18.1 of the Anti-Dumping Agreement,  or the specific provisions of the Anti-Dumping 
Agreement cited above.   WT/DS331/R 
Page 146  
 
 APPENDIX 2 
 
27 September 2006 
SUPPLEMENTAL WORKING PROCEDURES OF THE 
PANEL CONCERNING CERTAIN BUSINESS 
CONFIDENTIAL INFORMATION
 
 
 
1. Mexico shall submit to the Panel six copies and to Guatemala one copy of any information 
designated as business confidential. 
 
2. For the purposes of these proceedings, busin ess confidential information means any 
information that is designated as such by the Pa rty submitting the latter and that is not information 
accessible to the general public.  
3. The party submitting business confidential informati on shall mark the cover and/or first page 
of the document containing business confidential information, and each page containing such 
information to indicate the presence of such inform ation.  Specifically, the information in question 
shall be placed between double brackets, as follows: [[xx,xxx.xx]].  The first page or cover of the 
document shall state "Contains business confidential information on pages xxxx xx", and each page of 
the document shall contain the same notice at the top of the page. 
 
4. In addition to the requirements laid down in Article 18.2 of the DSU, Guatemala shall treat as 
confidential the information that has been desi gnated as business confidential under these procedures; 
i.e., Guatemala shall not disclose the information c ontained therein without the formal authorization 
of Mexico.  The parties shall have the responsibilit y for all members of their delegations, which, for 
the purposes of these supplemental procedures only, shall not include any employee of any private 
entity that was an interested party in the anti-dumpi ng investigation, and shall provide the other party 
and the WTO Secretariat with a list of the names and functions of persons  having access to such 
information.  In particular, no member of the dele gations of the parties shall disclose to any person 
outside said delegations any information designate d as business confidential under these procedures, 
and any such information must only be used fo r the purposes of submissions and argumentation in 
this dispute and for no other purpose. 
 5. The parties and the Secretariat engage to keep business confidential information in a secure 
location so as to ensure that it is used sole ly by persons authorized under these procedures. 
 
6. Any party referring in its writte n submissions or oral statements to any information that has 
been designated as business confidential under these procedures, shall clearly identify all such 
information in those submissions and statements.  All such written submissions shall be marked as 
described in paragraph 2, above.  An edited vers ion not containing any express reference to business 
confidential information of any written submission containing business confidential information shall 
be submitted to the Panel simultaneously with the version containing business confidential 
information.  In the case of an oral statement containing business confidential information, a written, 
edited version not containing any ex press reference to such informa tion shall be submitted within a 
day after the statement has been made.  Non-confiden tial versions shall be redacted in such a manner 
as to convey a reasonable understanding of the s ubstance of the business confidential information 
deleted therefrom. 
 WT/DS331/R 
Page 147 
 
 
  7. The Panel engages not to disclose, in its report, or in any other way, any information 
designated as business confidential under these pro cedures.  The Panel may, however, make 
statements of conclusion drawn from such information.  8. Submissions containing information d esignated as business confidential under these 
procedures will, however, be included in the record forwarded to the Appellate Body in the event of 
any appeal of the Panel's Report.  9. Once the Panel proceedings have been complete d, in the event that the Panel’s Report has not 
been appealed, or once the Appellate Body proceedi ngs have been completed, as the case may be, all 
business confidential information received by the WT O Secretariat is to be returned to Mexico.